Sachin Kumar Singh vs Akhilesh Kumar Soni and Others

N.K. Agarwal, J.—The legality and propriety of the order dated 18-3-2011 passed by the Additional District Judge, Sakti, Distt. Janjgir, Champa (CG.) in Miscellaneous Civil Suit No. 02 of 2010 is under assail in the instant revision filed u/s 26(2) of the C.G. Municipalities Act, 1961 (for brevity ''the Act of 1961'') read with Rule 19 of the C.G. Municipalities (Election Petition) Rules, 1962 (for short ''the E.P. Rules of 1962''). The respondent No. 1 filed an election petition u/s 20 of the Act of 1961 challenging election of the applicant to the office of the Vice-President, Nagar Panchayat. The election petition was presented directly in the Court of Additional District Judge, Sakti.

The Additional District Judge, Sakti, declared the election of the applicant as void and declared non-applicant No. 1-Akhilesh Kumar Soni as duly elected on the post of Vice-President, Nagar Panchayat, Jaijaipur.

I have heard learned Counsel for the parties and perused the record of Court below.

The short question that arises in this revision is whether the respondent No. 1 could present the election petition u/s 20 of the Act of 1961 against the applicant before the Additional District Judge. Sakti, District Janjgir Champa instead of filing it before the District Judge, Janjgir Champa ?

Sub-section (1) of Section 20 of the Act of 1961 provides that "no election or nomination under this Act shall be called into question except by a petition presented in accordance with the provisions of this section. Sub-section (2) of Section 20 provides that an election petition may be presented-

(a) by any candidate at such election or nomination; or

(b) (i) in the case of an election of a Councillor, by any voter of the ward concerned;

(ii) in the ease of a nomination of Councillor, by any Councilor ;

(iii) in the case of election of President by any voter of the Municipal area.

Sub-section (2) further provides that the election petition is to be presented to the District Judge, where such election or nomination is held within the Revenue District in which the Court of the District Judge is situated and in any other case, to the Additional District Judge having the permanent seat of his Court with the Revenue District in which such election or nomination is held and if there be more than one such Additional District Judge within the said Revenue District, to such one of them as the District Judge may specify for the purpose (hereinafter such District Judge or Additional District Judge referred to as Judge).

As per sub-section (3) of Section 20, the election petition has to be presented within 30 days from the dale on which the result of such election or nomination was notified in the Gazette; and the election petition is to be accompanied by a Government Treasury receipt showing a deposit of two hundred rupees, in the ease of election or nomination to Municipal Councils and one hundred rupees in the case of election or nomination to Nagar Panchayats.

Indisputably, the election of Nagar Panchayat, Jaijaipur, was held in the Revenue District of Janjgir Champa. The Court of District Judge as well as the permanent seat of Additional District Judge at Sakti are situated within the Revenue District of Janjgir Champa.

Section 20 (1) of the Act of 1961, in an unequivocal term, provides that no election or nomination under this Act can be challenged except by a petition presented in accordance with the provisions of that section. Therefore, in case, the petition is not presented in accordance with Section 20 of the Act of 1961, it is liable to be dismissed.

The Full Bench of High Court of Madhya Pradesh, in the case of Babulal Vs. Dattatraya and others, in Para 7 has observe as under:-

......If the provisions of Section 20 of the M.P. Municipalities Act are considered in this background, it would be clear that the election petition is to be entertained by the District Judge or his delegate. This is made more clear in Section 20 under the provision which authorises the District Judge to nominate any one of the Additional District Judges for this purpose if in the same Revenue District there are more than one Additional District Judge. In this view of the matter, it would follow that what Section 20 contemplates is that the election petition shall be entertained by the District Judge; and if the matter comes from another Revenue District, it shall be entertained by the delegate or the nominee of the District Judge......

A Single Bench of High Court of Madhya Pradesh, in the case of Smt. Rajni Sahu Vs. Smt. Asma and Others, , has held: where election is held within the Revenue District in which the Court of the District Judge is situated, the election petition is to be necessarily presented to the District Judge alone. In other words, if the Court of District Judge is not situated in the Revenue District in which election is held, the election petition may he presented to the Additional District Judge having the permanent scat of his Court within the Revenue District in which such election is held.

In this particular case, the election was held within the Revenue District of Janjgir Champa. Therefore, the first part of the relevant provision would be applicable and for this reason, the election petition has to be filed before the District Judge, Janjgir Champa and not before the Additional District Judge, Sakti.

In my opinion, the provision of Section 20 (1) of the Act of 1961 is mandatory in nature and, therefore, the respondent No. 1 could not have filed the election petition at Sakti.

Shri Sanjay K. Agrawal, learned Counsel appearing for respondent No. 1, vehemently argued the applicant did not raise any question of jurisdiction before the Additional District Judge, Sakti; the Additional District Judge was also having jurisdiction to hear and decide the election petition, inasmuch as, the Court of Additional District Judge is situated well within the Revenue District of Janjgir Champa in which the election has been held. As per Section 21(1) of the Code of Civil Procedure, no objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. According to Mr. Agrawal, Section 21(1) of the CPC is mandatory in nature and new point cannot be permitted to be raised before the Revisional Court, and therefore, the revision petition is liable to be dismissed.

In the instant case, the jurisdiction has been conferred on the District Judge by the Statute. Section 20(1) of the Act of 1961 mandates the election petitioner to present the election petition in accordance with the provisions of this Section, which, admittedly, has not been filed. Sub-section (3) of Section 20 further provides for limitation, according to which, the petition can only be presented within 30 days from the date on which the result of such election or nomination was notified in the Gazette. Therefore, presentation of election petition before the wrong forum, even if not challenged by the election petitioner, would not cure the detect of jurisdiction for the purpose of Section 20 (1) of the Act of 1961.

The Supreme Court, in the case of Harshad Chiman Lal Modi Vs. DLF Universal and Another, has held, where a Court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by the statute, charter or commission, it cannot take up the cause or matter and an order passed by a Court having no jurisdiction in nullity and observed in Paras 28 and 29 of its judgment as under:-

We are unable to uphold the contention. The jurisdiction of a Court may be classified into several categories. The important categories are:- (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a Court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a Court having no jurisdiction is nullity.

In Halsbury''s Laws of England. (4th Edn.), Reissue. Vol. 10. Para 317; it is stated:

Consent and waiver.- Where, by reason of any limitation imposed by statute, charter or commission, a Court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the Court, nor can consent give a Court jurisdiction if a condition, which goes to the jurisdiction has not been performed or fulfilled. Where the Court has jurisdiction over the particular subject matter of the claim or the particular parties and the only objection is whether, in the circumstances of the case, the Court ought to exercise jurisdiction, the parties may agree to give jurisdiction in their particular case; or a defendant by entering an appearance without protest, or by taking steps in the proceedings, may waive his right to object to the Court taking cognizance of the proceedings. No appearance or answer. However, can give jurisdiction to a limited Court, nor can a private individual impose on a Judge the jurisdiction or duly to adjudicate on a matter. A statute limiting the jurisdiction of a Court may contain provisions enabling the parties to extend the jurisdiction by consent.

In view of above, in my considered opinion, the election petition filed before the Additional District Judge, Sakti was not maintainable, and therefore, it is liable to be dismissed as it was not presented before the Court of competent jurisdiction.

For the foregoing, the impugned order dated 18-3-2011 passed in Misc. Civil Suit No. 02 of 2010 is set aside. The revision, therefore, succeeds and is allowed. No costs.