Kalpana vs Mohd. Sarfaraj

Lok Pal Singh, J

1) Petitioner has invoked extraordinary jurisdiction of this Court under Article 227 of the Constitution of India seeking quashing of impugned judgment and order dated 26.02.2019, passed by learned District Judge, Rudrapur, Udham Singh Nagar, in Civil Appeal no. 04 of 2019, Mohd. Sarfaraj vs Smt. Kalpana. A further prayer has been sought to uphold the judgment and order dated 07.02.2019, passed by learned Prescribed Authority / S.D.M. Kashipur, Udham Singh Nagar in Election Petition no. 02 of 2014.

2) Facts leading to the present case are that the general elections of Village Pradhan in different villages of District Udham Singh Nagar and other districts in the State of Uttarakhand, except District Haridwar, were held in the year 2014. Petitioner, respondent and six others contested the elections of village Pradhan from Village Barkheda Pandey, Development Block Kashipur, District Udham Singh Nagar. Respondent was elected as village Pradhan. The petitioner filed an election petition, being case no. 02 of 2014, Smt. Kalpana vs Akhtar and others, challenging the election of respondent Sarfaraj on the grounds that on the date of nomination, the respondent Sarfaraj was minor, therefore, his election be set aside and quashed and applicant (petitioner herein) be declared elected village Pradhan as she has secured the votes next to the returned candidate. The respondent filed his written statement, stating therein, that he was not minor on the date when he submitted the nomination form.

3) The parties led their evidence in the election petition. Learned Prescribed Authority/ S.D.M. Kashipur by its judgment and order dated 12.06.2018 dismissed the election petition holding that the date of birth of respondent Sarfaraj, as contended in the additional written statement, is 11.07.1992, therefore, he was aged about 21 years.

4) The petitioner having considered that there is a mistake apparent on the face of record as the date of birth certificate of Sarfaraj which depicts his date of birth as 15.03.1994 has not been considered at all, therefore, the order rejecting the election petition dated 12.06.2018 is liable to be reviewed. The respondent filed his objection to the review application, stating therein, that his father wrongly mentioned his date of birth as 15.03.1994, which is incorrect. The learned Prescribed Authority vide its judgment and order dated 07.02.2019, recorded a finding that the date of birth of defendant no. 4 Sarfaraj as mentioned in the school leaving register, i.e., 15.03.1994, which was earlier recorded has been corrected subsequently as 11.07.1992. Having considered the fact that the date of birth of respondent Sarfaraj was changed without authority of law and having passed the judgment dismissing the election petition, the learned Prescribed Authority could not notice the actual date of birth which ultimately resulted into dismissal of the election petition. Having considered the error apparent on the face of record, learned Prescribed Authority vide its order dated 07.02.2019, allowed the review petition declaring the respondent Sarfaraj disqualified and cancelled his election.

5) Feeling aggrieved by order dated 07.02.2019, passed in review application, the respondent preferred an appeal before learned District Judge, Udham Singh Nagar being Civil Appeal no. 04 of 2019, Mohd. Sarfaraj Vs Smt. Kalpana, under Section 12 of the U.P. Panchayat Raj Act, 1947.

6) While preferring the appeal, the respondent impleaded the petitioner as respondent. However, other respondents in election petition were not arrayed as party to the appeal. Learned District Judge by impugned judgment and order dated 26.02.2019, allowed the civil appeal and set aside the order dated 07.02.2019, setting aside the election of the respondent. Feeling aggrieved, the petitioner has preferred the present writ petition on the ground that no appeal is provided against an order passed by the Prescribed Authority in exercise of its jurisdiction under Section 12 of the U.P. Panchayat Raj Act, 1947 (herein after referred to as 'the Act').

7) Section 12C(1) of the Act is extracted hereunder:

"12C. Application for questioning the elections. -(1) The election of a person as Pradhan or as member of a Gram Panchayat including the election of a person appointed as the Panch of a Nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that -

(a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or

(b) that the result of the election has been materially affected -

(i) by the improper acceptance or rejection of any nomination; or

(ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder.

(2) ************

8) A plain reading of Section 12C would show that it speaks about application for questioning the elections. Sub-Section (6) of Section 12C(1) of the Act provides that any party aggrieved by an order of the Prescribed Authority upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge, for revision of such order on any one or more of the following grounds:

(a) that the prescribed authority has exercised a jurisdiction not vested in it by law;

(b) that the prescribed authority has failed to execute a jurisdiction so vested;

(c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity.

9) The revisional power under sub-section (6) of Section 12C(1) of the Act is akin to the power under Section 115 of the Code of Civil Procedure. Revisional powers of District Judge under sub-section (6) of the Act are limited to the conditions as mentioned above. Undisputedly, no appeal is provided under the Act. Thus, an order passed by the Prescribed Authority under Section 12C(1) of the Act is revisable on the ground enumerated in sub-Section (6) of Section 12C(1) of the Act. Suffice to say that the revisional power does not confer reappraisal of evidence as of appeal. In an appeal, the entire matter is before the appellate court to consider the facts and law applicable in the matter. The appellate court has jurisdiction to re-appreciate the facts and evidence, but while exercising the revisional jurisdiction which is akin to Section 115 of the Code of Civil Procedure, the revisional court cannot exercise its jurisdiction to re-appreciate the evidence and facts of the case and cannot substitute the same with its own findings.

10) Legislative Assembly in its wisdom has chosen to provide the remedy of revision to the party aggrieved against an order passed under Section 12C(1) of the Act and aggrieved party may prefer the revision under sub-section (6) of Section 12C(1). Thus, the revisional jurisdiction is limited to the exercise of jurisdiction not vested in the Prescribed Authority; non-exercise of jurisdiction vested in it or, in the case, where the Prescribed Authority has acted with illegality or material irregularity. Thus, the revisional jurisdiction does not empower the revisional court to re-appreciate the evidence on record.

11) Revisional jurisdiction is confined only to the extent to correct the wrong exercise of jurisdiction if the finding is manifestly contrary to evidence or so palpably wrong that if allowed to stand, would result in grave injustice to a party, whereof the appellate jurisdiction is akin to the power of trial judge / Prescribed Authority, as in an appeal the entire matter is to be scrutinized / re-appreciated by the appellate court on facts and law. The main difference between the appellate and revisional jurisdiction is that exercise of revisional jurisdiction is confined to the questions of jurisdiction, while in a first appeal the Court is free to decide all questions of law and fact which arises in the case. In the exercise of its revisional jurisdiction the High Court is not entitled to re-examine or re-assess the evidence on record and substitute its own findings on facts for those of the subordinate court. (Manick Chandra Nandy Vs Debdas Nandy and others, AIR 1986 Supreme Court 446) .

12) Hon'ble Apex Court in M/s Misrilal Parasmal Vs H.P. Sadasiviah and another, AIR 1965 Supreme Court 553, has held that the High Court has wide powers in dealing with revision applications, but the proviso to it which was added by Act 22 of 1954, restricts the powers of the High Court in any case in which an appeal lies under Section 15 of the Act to the District Court. Under the proviso the powers of the High Court while dealing with a revision from the order of the District Court are exactly the same as those conferred on it by Section 115 of the Code of Civil Procedure. That is to say, it can interfere with an order of the subordinate court only if there is an error pertaining to jurisdiction in that order. The High Court thus has no power to reverse the order of a District Court merely on the ground that it was vitiated by an error of law or upon the ground that a question of fact, however, vital it may be, was erroneously decided by the District Court.

13) The appeal as filed by the respondent was not maintainable as the Act does not contemplate and confined the power of appeal in District Judge under Section 12 of the Act. Learned District Judge without having noticed the fact that the appeal is not maintainable against an appeal passed by the Prescribed authority under Section 12C(1) of the Act and even without having considered the provisions of the Act, set aside the order under appeal date 07.02.2019 and allowed the appeal.

14) Learned counsel for the petitioner has two fold submissions (i) that the appellate court has exercised the jurisdiction of appeal under Section 12 of the Act, whereof an appeal does not lie against an order passed under Section 12C(1) of the Act. Therefore, it is an exercise of jurisdiction by the learned District Judge which has not been conferred upon him by the Act. Therefore, the judgment passed by the appellate court rendered without jurisdiction and is liable to be set aside on this score alone. The second limb of argument is that by means of election petition filed by the petitioner challenging the election of respondent Sarfaraj in declining the election of respondent no. 6 Sarfaraj void, all the respondents in the election petition before the Prescribed Authority were necessary and proper party. Firstly, the respondent did not implicate all the defendants of the election petition as party respondent, who were necessary and proper party of the appeal. Secondly, the learned District Judge did not consider the fact that the appeal filed by the respondent, though is not maintainable, should not be entertained unless all the parties before the election petition were not impleaded as party to the appeal. Thus, the appeal itself was liable to be dismissed on this score.

15) Learned counsel appearing for the respondent would urge that the election petition was dismissed by the Prescribed Authority vide its judgment and order dated 07.02.2019, on filing the review application. The Prescribed Authority should not have entertained the order sought to be reviewed by allowing the review application. Therefore, the Prescribed Authority had exceeded in its jurisdiction in allowing the review application. Thus, the District Judge in exercise of its appellate jurisdiction has rightly set aside the order dated 07.02.2019, in appeal. It is urged that the District Judge was having the jurisdiction under Section 12(6) of the Act to entertain a revision against the order passed in an application filed under Section 12C of the Act passed by the Prescribed Authority, whereof he has no jurisdiction to entertain the appeal instead of revision. The judgment passed by the appellate court would not render illegal on this score.

16) Having considered the submissions of learned counsel for the parties and perusal of the record it would reveal that the election petition was dismissed by the Prescribed Authority vide its order dated 07.02.2019 on a review application. Having considered the mistake apparent on the face of record that the date of birth of the Returned Candidate as recorded in public documents i.e. 15.03.1994, which was subsequently changed without authority of law and on the date of submitting the nomination paper, the respondent was not eligible to contest the election. Since the mistake was apparent on the face of record, the Prescribed Authority allowed the review application vide its judgment and order dated 07.02.2019 passed on review application. No doubt, the review court cannot exercise its jurisdiction as a regular court, but when the mistake is apparent on the record, the review court should not decline to exercise its jurisdiction to correct the error apparent on the face of record.

17) The order passed on the review application allowing the review petition against which at the most the respondent can file the revision under sub-section (6) of the Act, same can be scrutinized in exercise of the revisional jurisdiction by the learned District Judge, but not in exercise of its appellate jurisdiction.

18) Learned counsel appearing for the respondent has placed reliance on the following judgments:

i) Maharaja Chintamani Saran Nath Shahdeo Vs State of Bihar and others, (1999) 8 SCC 16.

ii) Ramesh Hirachand Kundanmal Vs Municipal Corporation of Greater Bombay and others, (1992) 2 SCC 524

iii) Meera Kanwaria Vs Sunita and others, (2006) 1 SCC 344.

19) In Maharaja's case, the issue before the Hon'ble Apex court was that if an order passed without jurisdiction is quashed, it would ultimately result in reviving an illegal order. Learned counsel for the respondent urged that since by an illegal order dated 07.02.2019 passed by the Prescribed Authority, review application was allowed having considered the fact that the order passed by the District Judge is without jurisdiction, thus, setting aside of the order passed by the District Judge on this ground would revive another illegal order. The order passed by the Prescribed Authority allowing the review application cannot be said to be illegal as the review court has found the mistake apparent on the face of record.

20) The ratio of said decision has no application in the instant case as the appeal before the District Judge was not maintainable and the judgment passed by the District Judge is absolutely without jurisdiction.

21) Having considered the submission of learned counsel for the petitioner as the jurisdiction has been exercised by the District Judge, which was not vested in it, though the submission of the learned counsel appears to be appealing, but the ratio of the judgment is not applicable as the setting aside of the order impugned would not revive another illegal order. Thus ratio of the judgment (supra) has no application in the case in hand.

22) In Meera Kanwaria's case the facts are in regard to a reserved constituency seat and has no application in the present case where the controversy is in regard to a general seat. The facts and the ratio are entirely on different footing in the case in hand.

23) In Ramesh Hirachand's case the question was of addition of necessary party in a suit. The prayer of impleading the necessary party in a suit is in regard to the relief sought for by the plaintiff and it would be confined only to the respondent against whom the relief is sought for, but in an election petition without a declaration has been sought that the election of the Returned candidate be cancelled it means all the parties contested the election which are necessary party in view of the provisions contained in the Act. The appeal could not have been filed without impleading all the parties before it, who were party in election petition before the Prescribed Authority. The other defendants, who were party in election petition may be formal parties, but since the election of Returned candidate was cancelled in appeal, they were necessary and proper party as an order of cancellation of the election of the Returned candidate gives a right to them to contest a future election in the village. Therefore, to my mind, they were necessary and proper party in the revision, whereof instead of revision, appeal was filed, but they should have been impleaded as party respondent and the appeal was liable to be dismissed on this score alone. I am unable to understand why the respondent committed such a blunder in non-impleading them as party-respondent and in filing the appeal instead of revision and the learned District Judge could not notice all these illegalities in filing the appeal and allowed the appeal by impugned order.

24) It is settled position in law that when the Statute provides that things should be done in a particular manner, the same should be done in that manner alone and not otherwise. This principle has been conclusively settled in a number of judgments.

25) In State of U.P. Vs Singhara Singh & other, AIR 1964 Supreme Court 358, the Hon'ble Apex Court has held as follows:

"8. The rule adopted in Taylor Vs Taylor (1876) 1 Ch D 426 is well recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in S. 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of S. 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. This action, therefore, by conferring on magistrates the power to record statements or confession, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions given to him."

26) Having considered the respective submission of learned counsel for the parties and after perusal of the orders passed by the court below, this Court is of the firm opinion that the appeal filed by the respondent was not maintainable as the Statute does not provide the remedy of appeal against the order passed under Section 12C(1) of the Act. Learned District Judge has committed illegality in not only entertaining the appeal, but in allowing the appeal on a misconception of law that the Prescribed Authority has illegally allowed the review application.

27) In exercise of jurisdiction under Article 227 of Constitution of India, the powers are required to be exercised by the Court sparingly and carefully in order to keep the inferior courts or tribunal into metes and bounds, and such powers should not be exercised in a routine manner. Supervisory jurisdiction can be invoked when miscarriage of justice has occasioned to the party aggrieved. The jurisdiction under Article 227 of the Constitution of India is a supervisory jurisdiction conferred on all the High Courts and is confined only to examine as to whether the Subordinate Courts/Inferior Courts/Tribunals have proceeded within the parameters of its jurisdiction or acted beyond the parameters in exercise of said jurisdiction.

28) In view of the findings recorded above, impugned judgment and order dated 26.02.2019 is unsustainable in eyes of law. Same is hereby quashed. Writ petition stands allowed. On the peculiar facts and circumstances of the case, parties shall bear their own costs.