Jaspal Singh vs State of Punjab

V.K. Bali, J.

Jaspal Singh clamours for setting aside the order, Annexure P.3 dated May 7, 1992 passed by the Regional Deputy Director, Local Government, Amritsar vide which findings on preliminary issues framed in election petition preferred by respondent No. 3 were found to have no substance and vide which as well the parties were thereafter to lead evidence.

The brief facts giving rise to the present petition require to be noticed first.

The petitioner was duly elected as Councillor from Ward No. 20 of the Municipal Corporation of Amritsar. Respondent Nos. 3 to 8 were also aspiring to be Councillors from the same very ward and were contesting candidates in the election held on 28.4.1991. The names of all the persons elected as Councillors in the election including that of the petitioner were published by the Director in the official gazette on 2.5.1991. Respondent No. 3 Jagjit Singh, however, challenged the election of the petitioner by way of election petition which was presented before the Deputy Commissioner, Amritsar the Authority prescribed under Section 18 of the Punjab Municipal Corporation Act, 1976. The Deputy Commissioner sent the election petition aforesaid to the Secretary, Local Bodies Department of Punjab State and the State of Punjab then sent the said election petition to respondent No. 2 i.e. the Regional Deputy Director, Local Government, exercising the powers of Prescribed Authority at Amritsar for disposal. When the petitioner in response to the notice issued to him in the election petition aforesaid appeared before respondent No. 2, he raised a number of preliminary objections which for ready reference may be reproduced as under :

"i) Election petition has not been presented to the prescribed authority as required under Section 18 of the Act. The Deputy Commissioner is not the prescribed authority.

ii) The Election Petition is time barred.

iii) The Election Petition does not disclose any cause of action.

iv) The Election Petition is not properly verified.

v) That paras No. 3 and 4 of the petition are vague and do not contain concise statement of material facts with sufficient particulars as required under Section 18(4) of the Municipal Corporation Act."

Respondent No. 2 framed issue Nos. (i) to (v) as per the objections reflected above and the said issues which are reproduced below were treated as preliminary issues :

i) Whether any prescribed Authority was not appointed on or before the notification of the result of election under Section 17 ? (OPP).

ii) Whether the Director, Local Govt. Punjab had no power to delegate powers under the Corporation Act ? (OPR).

iii) Whether the petition has not been presented to the prescribed Authority under the Corporation Act, if so, what is its effect ? (OPR).

iv) Whether the Deputy Commissioner, Amritsar was not the prescribed authority under the Corporation Act to receive the election petition, if so, what is its effect?

v) Whether the petition does not show any cause of action if so, what is its effect (OPR) ?

After hearing the arguments of the parties, all the issues were determined against the petitioner and in favour of respondent No. 3 by respondent No. 2 by order dated 7.5.1992 (Annexure P3) which has been challenged in this petition.

The main plea of the petitioner as has been taken in the writ petition as also canvassed at the time of arguments is that respondent No. 2 decided issue Nos. (i) to (v) and in particular Issue No. (v) in flagrant abuse of elementary principles contained in the Code of Civil Procedure as also against the principles of natural justice. In that direction, the contention of the learned counsel appearing for the petitioner is that respondent No. 2 did not decide issue No. (v) at all and inasmuch as the said issue related to the cause of action, decision whereof, if rendered in favour of the petitioner, could result into the rejection of the election petition, his case has been prejudiced.

From the perusal of the order Annexure P3, it is revealed that after noticing the contention of the learned counsel for the contesting parties, respondent No. 2 abruptly came to a decision by giving findings on all the issues in one go and in the process adopted, be committed an apparent error by not even touching the points, contends the learned counsel. It has also been canvassed before this Court that in the matter of Municipal Corporation elections, no Prescribed Authority has even so far been appointed to hear and dispose of the election petitions. Respondent No. 2 in his order Annexure P3 confirmed that "The prescribed authority has not been defined in the Act nor any Gazette notification has been issued to this extent." Yet the issue pertaining to the objection aforesaid has been determined against the petitioner resulting into manifest error on the records of the case.

In response to the notice issued in this petition, a written statement has been filed by respondent No. 3. While dealing with the first objection, it has been pleaded that while drafting the petition, the cause of action was sufficiently pleaded as reflected from para 4(d) of the election petition which reads thus :

"4(d) That the Presiding Officers at the time of counting the votes committed the following mistakes :

(i) About 30 votes which were liable to be rejected under the rules, but the same were counted as valid votes in favour of respondent No. 1 i.e. petitioner.

(ii) That the Presiding Officer rejected some votes which were not liable to be rejected under the rules, but were valid votes. That during the course of evidence, it has been found that some invalid votes have been counted in favour of the petitioner. The statement of Shri Manjit Singh, Tehsildar (Election), who appeared as PW1, had stated that 17 ballot papers out of Booth No. 4 which were counted in favour of Shri Jaspal Singh returned candidate are found invalid on account of double marking. Jaspal Singh, petitioner, got 1171 votes and Shri Jagjit Singh respondent (election petitioner) got 1359 votes. As such the Election Petition is likely to succeed and the petitioner had taken frivolous grounds in this writ petition."

Once the cause of action was sufficiently disclosed, the determination of Issue No. (v) was correct, contends the learned counsel. It is also maintained that while dealing with the issue in question, a specific finding had been given by respondent No. 2. In so far as the second question that has been raised by the petitioner with regard to the Government having not framed any rule with regard to election of the Councillor is concerned, it is the case of the other side that Rules of 1952 in so far as they are not in consistent with the provisions of the Act would continue to hold the field.

After hearing the learned counsel for the parties, I am of the considered view that whereas there is considerable force in the first point raised by the learned counsel, there is no substance in the second point that has been canvassed by the learned counsel for the petitioner. Issue No. (v) was as to whether the petition does not show any cause of action and if so, what was its effect? The onus of the issue aforesaid was placed on the petitioner, who was respondent in the election petition. It is an admitted position between the parties that no evidence was led. It is also the admitted position between the parties that the provisions of the Code of Civil Procedure are applicable. That being so, respondent No. 3 has necessarily to deal with the contents of para 4(d) of the petition, reproduced above, as also the reply, if any, and by a process of reasoning, he has to return an independent finding on issue No. (v). Instead, all that is discernible from Annexure P3 is one at page 5 of the order, which reads thus :

"According to him if the legal right accrues to a voter, a candidate or an agent, a sufficient ground for cause of action to file a petition arises. On the grounds mentioned from Paras 1 to 6 of the petition the cause of action accrued to the petitioner as a legal right and this is available to him as per proviso laid down under the Act."

The nonspeaking cryptic order in so far as it pertains to Issue No. (v) as reproduced above clearly demonstrates that a conclusion has been arrived at without the process of reasoning whatsoever. The order aforesaid to the extent as mentioned above, thus, does not have attributes of judicial or quasijudicial order and on that account needs to be set aside.

Mr. Palli, Senior Advocate, appearing for respondent No. 3, however, vehemently contends that once a conclusion had been arrived at this Court could certainly go into the pleadings at its own level and find out as to whether the cause of action was spelled out from the petition or not. No doubt, this course is open to this Court but I am of the considered view that this exercise ought to have been done by a quasijudicial authority and was then open to this Court to examine the legality and propriety of the findings recorded by him. The facts and circumstances of the case do not warrant the findings to be recorded on Issue No. (v) for the first time in this Court and that being so, the contention of Mr. Palli has to be repelled. In so far as the second point with regard to incompetent of respondent No. 2 to entertain, try and dispose of the election petition is concerned, suffice it to say that by virtue of Section 428(a) of the Punjab Municipal Act, 1976, all rules, byelaws, regulations which have been framed under Punjab Municipal Act, 1911 or any other law in force in any local area in so far as they are consistent with the provisions of the Punjab Municipal Corporation Act, shall continue to be in force until they are specifically superseded. Section 428(a) of the Act aforesaid reads thus :

"Any appointment, delegation, notification, notice, tax, order direction, scheme, licence, permission, registration, rule, byelaw, regulation, form made, issued, imposed or granted under the Punjab Municipal Act, 1911, or any other law in force in any local area, constituted to be a City or included in a City, immediately before the appointed day shall, in so far as it is not inconsistent with the provisions of this Act, continue in force until it is superseded by any appointment, delegation, notification, notice tax, order, direction, scheme, licence, permission, registration, rule, byelaw or form made, issued, imposed or granted under this Act or any other law as aforesaid as the case may be."

In Mrs. Bimla Arora v. State of Punjab and others, 1992(1) RRR 544 : 1992 PLJ 146, a Division Bench of this Court held that "From the scheme of Chapter II read with Section 428 of the Act, it is abundantly clear. that the legislature after making broad provisions relating to the constitution of a Corporation and the election of its Councillors has left the finer details regarding the mode and, manner in which the elections are to be held to the rule making authority. The election process commences with the publication of a notification under sub section (3) of Section 15 of the Act by the Director and concludes with the publication of the names of all persons elected as Councillors again by a notification published by the Director in the Official Gazette under Section 17. The framing of the election programme, the appointment of the Returning Officers and other officers for the conduct of elections, the nomination of candidates, scrutiny, withdrawal of candidates, the form of nomination papers etc. have deliberately been left to the rule making authority to provide for in the rules. It is true that no rules have been framed by the State Government under the Act but in view of the provisions of Section 428 of the Act, contained in Chapter XXIV dealing with transitory provisions, the 1952 Rules framed by the State Government under the Punjab Municipal Act, 1911 for conducting elections of Municipal Committees will continue to operate for election of Councillors to a Corporation under the Act. The legislature while enacting the provisions of the Act, clearly intended to repeal the provisions of the Punjab Municipal Act, 1911 in so far as it related to the Municipal Corporation of Ludhiana and some other Corporations but was conscious of the fact that the State Government to whom the rule making power had been entrusted might take some time in framing the rules regarding; different matters for which provision had been made in the Act and since it did not want any vacuum during the interRegulation m period, a provision was made in Section 428 of the Act providing that the rules already framed under the Punjab Municipal Act 1911 in regard to an area constituted to be a city under the Act would continue to be in force till they are superseded by Rules framed under the Act."

In view of the authoritative pronouncement of the Division Bench in Mrs. Bimla Arora''s case (supra), the contention of the learned counsel for the petitioner has to be replied. The learned counsel has not been able to point out any specific provision in the 1952 rules which can be said to be in consistent with the provisions of the Act. Besides, a notification dated December 20, 1991 issued by the Government of Punjab, Department of Local Government in the Gazette goes to reveal that the Regional Deputy Directors are deemed to be authority for hearing election petition under Section 18 of the Punjab Municipal Corporation Act, 1976 read with rule 58 of the Punjab Municipal Election Rules, 1952. This notification has been handed over to me at the time of arguments. It is, thus, placed on record.

In view of what has been stated above, the order Annexure P3 is set aside in so far as it pertains to decision upon Issue No. (v). The matter is remitted to respondent No. 2 who would hear the argument of the petitioner as also respondent No. 3 and return a finding on issue No. (v) after discussing the pleadings of the parties as also the arguments by arguments the learned counsel appearing for the parties by a process reasoning. I am told that inasmuch as the proceedings in election petition were not stayed by this Court as the time of admission of the said petition the matter is ripe for final arguments. In case, respondent No. 2 returns a findings on Issue No. (v). in favour of the petitioner, obviously the election petition preferred by respondent No. 3 would be dismissed. However in case finding on Issue No. (v) goes in favour of respondent No. 3 then immediately thereafter the arguments in petition would be heard which will be disposed of in accordance with law.

Accordingly, the writ petition is disposed of in the manner indicated above. The parties are left to bear their own costs.