Hazura Singh vs The Ilaqa Magistrate 1st Class and others

S.S. Sandhawalia, J.—Hazura Singh petitioner in this petition under Articles 226 and 227 of the Constitution of India has prayed for the quashing of the order of the Prescribed Authority Shri G.S. Aggarwal, P.C.S., Magistrate 1st Class. Karnal, dated the 9th of October, 1964, whereby the election of the petitioner to the post of a Sarpanch has been set aside. The petitioner and respondent No. 2, Sawan Singh, had contested an election for the post of the Sarpanch of the Gram Sabha Kalayana, Tehsil Thanesar, district Karnal. The petitioner was declared elected by a margin of one vote. Respondent No. 2 then filed an election petition challenging the Election of the petitioner and by the impugned order the same was accepted and the election of the present petitioner was set aside. Aggrieved by the said order the petitioner preferred the present petition in this Court and along with that he had also prayed that the re election which had been ordered for the 2nd of November, 1964, By the Deputy Commissioner, Karnal, should be stayed. The present petition and the petition for stay came up before the admitting Bench consisting of A.N. Grover and Dua, JJ. and by their order dated the 30th of October, 1964, the petition was admitted but the prayer for stay of the election fixed for the 2nd of November, 1964, was expressly refused. There election on the 2nd of November 1964, was then duly held and the petitioner and respondent both contested the same. In the said election the petitioner was defeated and respondent No. 2 was declared elected by a majority of 43 votes. In the reply to the present petition on behalf of respondent No. 2 filed on the 2nd of December, 1966, two preliminary objections have been raised on his behalf the first being that the petition has become infructuous as a fresh election has taken place and this election cannot be set aside except by way of an election petition as laid down in section 13(b) of the Punjab Gram Panchayat Act. The second objection is that the petitioner having willingly participated in the fresh election is now estopped from pressing this petition. When the petition came up before a learned Single Judge on the 3rd of January, 1967 these two preliminary objections were strenuously pressed before him. In view the of fact that similar question is likely to arise in numerous other petitions and because of the obvious importance of the decision in the election matter, the learned Single Judge has referred the petition to a Division Bench and that is how the matter is before us.

Mr. H.L. Sarin, the learned counsel for respondent No. 2 has not pressed the second objection which he had raised before the learned Single Judge, namely that the fact of the petitioner having participated in the subsequent election operates as an estoppel and debars him from questioning the order made by the Prescribed Authority. He has however, strenuously contended that the petition has now become infructuous. Mainly the reliance has been placed on the provisions of section 13-B of the Punjab Gram Panchayat Act, 1952, hereinafter called as the Act which is in the following terms:

No election of a Sarpanch or Panch shall be called in question except by an election petition presented in accordance with the provisions of this Chapter.

The contention of the learned counsel, therefore, is that a fresh election having already taken place it cannot now be set aside except in conformity with the provisions of section 13-B, i.e. by way of an election petition. Admittedly no election petition has been filed against the result declared after the fresh election. Mr. Sarin further contends that the second election has also not been challenged in this Court under Articles 226 and 227 of the Constitution of India and has thus now become final. He submits that even if a wit of certiorari is to be granted it would be meaningless and would not afford any relief whatsoever to the petitioner. That being so he submits that this Court has always declined to decide issues which are wholly academic and from which no relief could possibly flow to the litigants. Mr. Sarin has, however, not cited any authority or decision in support of his above contention and has argued wholly on principle and based himself on the provisions of the statute.

Mr. Bahadur Singh, the learned counsel for the petitioner in reply has contended himself by basing his case mainly on the hardship that would be caused to the petitioner if the preliminary objection preferred is allowed to succeed. His contention is that it would be a matter of manifest injustice that the impugned order of the Prescribed Authority should become unchallengeable merely because the admitting Bench was pleased to decline the interim relief praying for the staying of the fresh election. Mr. Bahadur Singh also has been unable to support his contention by any authority and as noticed above either side has frankly conceded that there is no direct decided case on the point.

We have given careful consideration to the point in issue. It may be noticed that the Punjab Gram Panchayat Act, 1952, was amended by the Punjab Gram Panchayat Amendment Act 1962, being Punjab Act No. 26 of 1962. By the said amendment Chapter 2 - A containing sections 13-A to 13-U were placed on the statute. These provisions pertain to disputes regarding - elections as is apparent from the heading of the Chapter. Section 13-A is the defining section whilst the provisions of section 13-B have already been noticed. Sections 13-C to 13-N are primarily procedural, prescribing the mode of the presentation of the election petitions, the contents thereof, the authority which is to receive the same the power to withdraw and transfer petitions vested in the Deputy Commissioner and the procedure to be followed before the Prescribed Authority. The mode of appearance before the Prescribed Authority and the powers of the Prescribed Authority, as well as the procedure for the proceedings to be conducted by the same are laid out in the said provisions. Section 13-0 is material and is in the following terms:

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Then his lordship reproduced Section 13-0, and then proceeded. Editor.

It, therefore, emerges from the provisions of the statute that firstly an election to the Gram Panchayat is not to be set aside except by way of an election petition provided for u/s 13-B. Consequently the grounds of challenge for the same are circumscribed by the provisions of section 13-0 quoted above and lastly section 13-C provides that the petition must be presented on one or more of the grounds specified in sub-section (1) of section 13-0 to the Prescribed Authority.

It is noticeable that the provisions of Chapter 2-A introduced by the amending Act 1962 are similar to and in many cases in pari materia with the provisions of the Chapter 2 in part 6 of the Representation of People Act, 1951, Section 80 of the Representation of People Act, 1951 is as follows:

Election Petitions: No election shall be called in question except by an election petition presented in accordance with provisions of this part

It is thus clear that the provisions of section 80 of the Representation of People Act are identical in terms with that of section 13B of the Punjab Gram Panchayat Act, 1952. The relevant provisions of the Representation of People Act 1951 and the almost identical provisions of Article 329 (b) were authoritatively interpreted by the Supreme Court in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, and it was observed as follows:

The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court.

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It will be a fair inference from the provision of the Representation of the People Act to draw that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage.

In a Division Bench judgment of the Rajasthan High Court reported as Birma Ram v. The State of Rajatthan ILR (1858) 8 Raj 211 it has also been observed as follows:

The view is firmly established in this Court that where an election petition lies, this Court will never interfere until the election tribunal has decided the dispute between the parties concerned.

On the facts of this case it emerges that the results of the fresh election which have not been challenged either by way of an election petition u/s 13-B of the Act or by a petition under Articles 226 and 227 have now achieved a finality which cannot be disturbed by the grant of this writ petition and by quashing the impugned order here in.

The matter may also be viewed from another angle. Section 13-0 sub-clause (2), expressly provides that where an election has been set aside under the provisions of the section, a fresh election shall be held. This is obviously a mandatory provision. When the election of the present petitioner was set aside by way of election petition, the authority acting under the mandate of section 13-0 sub-clause (2) ordered a fresh election and fixed November 1, 1964 for filing of nomination papers, scrutiny etc. and November 2, 1964, for polling in the fresh election to be so held. This was sought to be stayed in Civil Miscellaneous No. 3775 of 1964, dated the 27th October," 1964, by the petitioner by way of interim relief at the time of the admission of the present petition. As has already been noticed this Civil Miscellaneous was rejected by the admitting Bench consisting of A.N. Grover and I.D. Dua, JJ. and vide their order dated the 30th of October, 1964, stay was expressly declined and the following order was passed:

Mr. Bahadur Singh.

Notice. No stay, early date.

that being so the election held after the due publication of the election programme on the 2nd of November, 1964 was wholly in accordance with the law and its validity is not now being impeached in the present petition. Therefore even assuming for the sake of argument that the writ petition were to be allowed and a writ of certiorari as prayed were to issue, no relief would be afforded to the petitioner as the result of the fresh election will continue to be of absolute validity. In K.N. Guruswamy Vs. The State of Mysore and Others, , their lordships of the Supreme Court even when inclined to uphold the contentions of the appellant have observed as follows:

A writ would therefore be ineffective and as it is not our practice to issue meaningless writs we must dismiss this appeal and leave the appellant content with an enunciation of the law.

In the matter under the U.P. Municipalities Act a full Bench of the Allahabad High Court in Mahesh Chandra and Another Vs. Tara Chand Modi, has also observed as follows:

The election of the President and the Vice-Presidents will take place shortly. Therefore, it would be futile to issue any of the writs prayed for by the petitioners. It is well-established principle on which Courts have acted that the issue of a writ being within the discretion of a Court, the Court would rarely issue a writ if the issue of such a writ was to be futile. As I have said, in this case it would be futile.

With these observations, the learned Judges of the Full Bench then proceeded to dismiss the petition.

We are, therefore, of the view that the decision on merits in this writ petition would on the present facts be wholly academic and is incapable of affording any relief to the present petitioner. Upholding the preliminary objection raised on behalf of the respondent, and finding the present petition to be infructuous we would, therefore, dismiss the same. In the circumstances of the case, there will be no order as to costs.

R.S. Narula, J.

I agree.