Kailash Chandra vs Additional District Judge and Others

Dilip Gupta, J.—This petition seeks the quashing of the judgment and order dated 11th March, 2011 of the Additional District Judge, Court No. 7, Etah by which the election petition filed by Israr Ahmad-Respondent No. 2 u/s 19/20 of the U.P. Municipalities Act, 1960 was allowed and the election of the Petitioner as Chairman of the Nagar Palika Parishad, Etah was not only set aside but the election Petitioner-Israr Ahmad was declared elected.

It transpires from the records of the writ petition that Election Petition No. 6 of 2006 was filed by Israr Ahmad on 4th December, 2006 to challenge the election of the Petitioner as Chairman of the Nagar Palika Parishad. A written statement was filed by the Petitioner on 12th September, 2007. Subsequently, the Petitioner moved an application on 30th April, 2009 for amendment in the written statement. This application was rejected by the Election Tribunal by the order dated 27th May, 2009. It also transpires from the records that earlier, two writ petitions were filed by the present Petitioner-Kailash Chandra and Israr Ahmad Respondent No. 2 in this petition. Writ Petition No. 24166 of 2010 was filed by Kailash Chandra for quashing the order dated 27th May, 2009 by which the application filed by the Petitioner for amendment in the written statement was rejected, while Writ Petition No. 10849 of 2011 was filed by Israr Ahmad for setting aside the order dated 5th January, 2011 by which the hearing of the election petition was deferred. Both these writ petitions were decided by a common judgment dated 28th February, 2011. Writ Petition No. 24166 of 2010 was dismissed with costs and the Election Tribunal was directed to decide the election petition in accordance with law expeditiously, preferably within two months from the date of presentation of a certified copy of the order passed by the Court on day-to-day basis without granting any unnecessary adjournments to the parties. Writ Petition No. 10849 of 2011 was allowed with the observation that once the interim order was not extended in the aforesaid Writ Petition No. 24166 of 2010, the Election Tribunal should have proceeded with the hearing of the election petition.

It is after the decision in the aforesaid two writ petitions on 28th February, 2011 that Israr Ahmad filed an application dated 8th March, 2011 before the Election Tribunal with a prayer that the election petition should be heard in view of the order passed by the High Court on 28th February, 2011. On 8th March, 2011, the Election Tribunal ordered that the petition will be heard on 9th March, 2011. On 9th March, 2011, the Election Tribunal noticed that the counsel for the election Petitioner was present and he was heard but the counsel for the Defendant Kailash Chandra who was present did not argue as he had no instructions. The Election Tribunal fixed 11th March, 2011 for judgment and also observed that if the Defendant wanted, he could make submissions on 10th March, 2011. On 11th March, 2011, an application was moved on behalf of Kailash Chandra that judgment should not be delivered and he should be given sufficient time to make his submission. This application was rejected by the Election Tribunal on 11th March, 2011 and the judgment was pronounced on the same day. The election petition was allowed. The election of Kailash Chandra as Chairman of Nagar Palika Parishad was set aside and Israr Ahmad was declared elected. It is this order dated 11th March, 2011 that has been impugned in the present petition.

Sri Arvind Srivastava, learned Counsel for the Petitioner submitted that copy of the application dated 8th March, 2011 filed by Israr Ahmad in Election Petition No. 6 of 2006 after the decision of the High Court on 28th February, 2011 was not served upon the counsel appearing for Kailash Chandra and Kailash Chandra or his counsel had no idea that the matter will be heard on 9th March, 2011 which was the date fixed for hearing by the Election Tribunal on the application filed by Israr Ahmad on 8th March, 2011. It is his submission that an endorsement was made by the counsel for Kailash Chandra on the application dated 8th March, 2011 that he did not have instructions to argue the petition and another counsel Sri Jauhari had the instructions but without serving the copy of the application on the said counsel, the application was filed on 8th March, 2011 and the Tribunal without notice to Kailash Chandra or his counsel fixed 9th March, 2011 for hearing. On 9th March, 2011, it was by chance that the counsel who had made the endorsement on the application that he had no instructions was present in the Court in some other matter and though he informed the Court that he did not have instructions but yet the Court heard the matter on 9th March, 2011 and fixed 11th March, 2011 for delivery of judgment. He, therefore, submits that it is for this reason that the application was moved on 11th March, 2011 on behalf of Kailash Chandra for deferring the judgment and hearing the matter but this application was rejected in an arbitrary manner and the judgment was pronounced. It is, therefore, his submission that the order has been passed without hearing the Petitioner and deserves to be set aside.

Sri P.N. Saxena, learned Senior Counsel appearing for the Respondents, however, submitted that when the counsel for Kailash Chandra was present in the Court on 9th March, 2011, he should have argued the matter but he made a statement that he did not have any instruction from his client as a result of which the arguments of the counsel for the election Petitioner were heard and thereafter 11th March, 2011 was fixed for delivery of judgment. It is, therefore, his submission that Kailash Chandra should have utilised the opportunity given by the Election Tribunal for making submission on 10th March, 2011 but for ulterior motives he did not do so and moved an application on 11th March, 2011 for deferring the judgment. It is, therefore, his submission that the Election Tribunal committed no illegality in rejecting this application. It is also his submission that even on merits, there is no infirmity in the judgment delivered by the Election Tribunal and the order should not be set aside, even if Kailash Chandra has not been heard by the Election Tribunal, as no prejudice has been caused.

I have considered the submissions advanced by the learned Counsel for the parties.

The application that was filed by Israr Ahmad on 8th March, 2011 was not served upon Sri Kailash Chandra or the counsel appearing for Kailash Chandra. Sri Shiv Shanker Agarwal, on whom the application was sought to be served, had made an endorsement that he did not have instructions and that copy of the application should be served on Sri Jauhari, Advocate. No attempt was made by the learned Counsel appearing for Israr Ahmad to serve a copy of the application on Sri Jauhari and the application was filed in the Court without serving it on the Defendant. While fixing 9th March, 2011, the Election Tribunal should have ensured that copy of the application dated 8th March, 2011 and the order was at least served upon the learned Counsel appearing for Kailash Chandra. The order passed by the Election Tribunal on 9th March, 2011 only indicates that Sri Shiv Shanker Agarwal was present in the Court who informed that he did not have instructions to argue the matter. According to Sri Arvind Srivastava, learned Counsel for the Petitioner, Sri Agarwal was present in the Court as he had to argue some other matter. It was, therefore, necessary for the Tribunal to have at least ensured that the counsel for Kailash Chandra had notice of the date fixed for hearing but it was not done and the Tribunal heard the arguments on 9th March, 2011 even in the absence of counsel appearing for Kailash Chandra. There is nothing on the record to indicate that the counsel appearing for Kailash Chandra had been informed that the matter would be heard on 9th March, 2011. Even if the Tribunal had passed the order on 9th March, 2011 that the counsel for Kailash Chandra could make his submission on 10th March, 2011, but there was no counsel appearing for Kailash Chandra on 9th March, 2011 who could have informed him and even otherwise, this order does not serve the purpose as the submissions advanced by the learned Counsel for Israr Ahmad would be not known to the other side. Mere presence of the learned Counsel for Kailash Chandra on 9th March, 2011 in the Court room does not help the Respondents.

It is no doubt true that the High Court passed the order that the election petition should be heard on day-to-day basis and should be decided expeditiously but this did not mean that the Tribunal should have heard the matter without ensuring that the counsel for Kailash Chandra had knowledge of the date fixed for hearing of the petition.

It is, however, the submission of Sri P.N. Saxena, learned Senior Counsel for the Respondents that even if the counsel for Kailash Chandra had not been heard, no prejudice has been caused to the Petitioner since there is no infirmity in the order passed by the Tribunal. In support of this contention he has placed reliance upon the decision of the Supreme Court in M.C. Mehta Vs. Union of India (UOI) and Others,

This submission of learned Senior Counsel for the Respondents cannot be accepted. In an election petition, it is necessary for the Tribunal to hear both the parties and in the present case, there is nothing on the record to indicate that the counsel for Kailash Chandra had been informed that the hearing of the election petition shall take place on 9th March, 2011.

It is also the contention of Sri P.N. Saxena, learned Counsel for the Respondents that as the entire records were with the Tribunal, the order delivered by the Tribunal should not be quashed merely because the counsel for Kailash Chandra was not given an opportunity to make his submission as hearing is only for the assistance of the Court. This submission cannot also be accepted. It cannot be urged that hearing the counsel for Kailash Chandra in an election petition was an empty formality.

It is, therefore, not possible to sustain the order dated 11th March, 2011 passed by the Election Tribunal. It is, accordingly, set aside. The Election Tribunal shall proceed to decide the election petition in accordance with law and in accordance with the directions issued by the Court in Writ Petition 10489 of 2011 on 28th February, 2011.

The writ petition is allowed to the extent indicated above.