Hasan Ali S/o Mohammaad Ali and another vs Collector, Nagpur and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 103

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
M.B. Ghodeswar S. Radhakrishnan, JJ.
Hasan Ali S/o Mohammaad Ali another ..... Petitioners.
Versus
The Collector, Nagpur others...... Respondents.
Writ Petition No. 451 of 1997, decided on 25-2-1997.
Advocates appeared :
S.P. Dharmadhikari, for petitioners.
Assistant Govt. Pleader, for respondents No. 1 and 2.
S.G. Aney, Sr. Counsel, for respondent No. 3.
A.M. Quazi, for respondent No. 4 Municipal Council, Kamtee.

Headnote:Section 9-See Maharashtra Municipal Councils, Nagpur Panch ayat and Industrial Townships Act. 1965.
       Article 243-ZG-See Maharashtra Municipal Councils, Nagar Panchayat and Industrial Townships Act, 1965, Section 21.
       Article 243-ZG-Maharashtra Municipal Councils. Nagpur Panchayats and Industrial Townships Act, 1965. Section 21-Election-Suit challenging election as council for also seeking relief that petitioner No. 1 ought not to contest as President.-If the suit is only for the purpose of challenging the validity of the case Certificate the suit may lie but unfortunately none of the prayers in the aforesaid suit deal with or seek the relief of declaring the caste validity Certificate to be bad in law. Even in the body of the suit the pleading is that petitioner has no right, even to remain as a councillor and that the Petition No. 1 has no rights to file a nomination form and contest the post of the President of Kamptee Nagar Parishad. In fact the respondent no has sought declaration to that effect and the pleadings in the plaint are very clear that it is a suit pertaining to the election only.
       Held, suit is clearly barred in view of Section 21 of the said Act and also prohibited under Article 243-ZG of the Constitution of India. Suit clearly barred and not maintainable.
       Articles 243-ZG and 226Maharashtra Municipal Councils and Nagar Panchayats Election Rules. 1966. Rule 15-Election of Municipal Councils-Objection raised as defaulter for non-payment of Octroi-Negatived by Returning officer-Appeal under Rule 15 before Add!. District Judge-Allowed-Challenge in writ -Arounds about non-maintainability on the basis of Article 243-ZG of Constitution-Interference by High Court in process of Election used in wide sense by Apex Court in AIR 1988 SC 61-Not proper-Preliminary objection raised on firm footing-Objection upheld-Writ petition dismissed. In view of the identical language of Article 329(b) with Article 243-ZG the word election will have to be used in the wider sense so as to include the whole election process and not in the narrower sense.
       Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965
       1490 -Section 21-See Constitution of India. Article 243-ZG.
       Section 21-Constltutlon of India, Article 243-ZG and CPC. Section 9-Sult for declaration for restraining defendants to take part in Selection of President-Election of President under challenge by writ-Availability of remedy under Section 51(3-A) and under Section 51(5) of Maharashtra Municipal Council Nagar Panchayat and Industrial Townships Act in existence-Bar under Article 243-ZG and Section 21 of Act-Suit bared having no jurisdiction to entertain suit by Civil court.-General elections to Municipal Council. Kamptee were held on 19.1.1997 and results were declared on 21. 1.1997. Meeting for electing the President of the Municipal Council was to be held on 7.2.1997. On 6.2.1997 suit was filed for declaration that one of the elected Councillors had no right to take part . in the proceedings of the meeting to be held on 7.2.1997 nor did he have a right to file nomination papers for the post of the President of the Municipal Council. On the same day the Joint Civil Judge, Junior Division, Nagpur passed interim order restraining the said Councillor from filing his nomination paper and from participating in the meeting to be held on 7.2.1997. Another Councillor was elected unopposed as the President in the meeting held on 7.2.1997. In writ petition under Article 226 of the Constitution of India by the said defendant, election of the President of the Municipal Council was challenged on the question of maintainability of the suit in the Civil Court.
       Held. that the right to get elected as President of the Municipal Council or any objection to the election of a President to the said Council is a legal right created under the Maharashtra Municipal Councils. Nagpur Panchayats and Industrial Townships Act and it is not a part of a common law right. When finality is attached to any order passed. Courts normally are not to interfere. The suit in substance challenged election of the petitioner as Councillor and also sought relief that he ought not to contest as President. The suit was clearly barred in view of Section 21 of the Act and was also prohibited under the provisions of Article 243ZB of the Constitution of India and was not maintainable. The Joint Civil Judge, Junior Division had no jurisdiction whatsoever to grant injunction.

JUDGMENT - S. RADHAKRISHNAN, J. :---Rule. Rule made returnable forthwith by consent. Heard the Counsel at length.

2.The brief facts of the case are that on 19th January, 1997, the general elections of the Municipal Council, Kamptee was held in which 30 Councillors from 30 wards were elected and out of these 30 wards, 8 wards were reserved for Other Backward Community (O.B.C.). On 21st January, 1997, the results of the above elections were declared and 30 Councillors were duly elected. The petitioner No. 1 was elected from Ward No. 5. The petitioner No. 2 was elected from Ward No. 20 and the respondent No. 3 was elected from Ward No. 27. The respondent No. 1 being the Collector had called the meeting of the Councillors for election of the President which meeting was to be held on 7th February, 1997 under section 51 of the Maharashtra Municipal Council, Nagar Panchayat and Industrial Township Act, 1965 (hereinafter referred to as the said Act for the sake of brevity). The seat of the President was reserved for O.B.C. and as such only candidates belonging to the O.B.C. were entitled to contest for the election of the President. On 1st February, 1997 Shri Shravan Narayan Kojarkar filed an Election Petition No. 36 of 1997 before the 7th Additional District Judge, Nagpur under section 21 of the said Act challenging the election of the petitioner No. 1. In this petition, the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure was moved for prohibiting the petitioners from acting as the Councillor of Kamptee and also taking part in the meeting of the Council scheduled to be held on 7th February, 1997. On 6th February, 1997, the 7th Additional District Judge had fixed the Election petition for hearing and on this date the petitioner had filed his reply opposing the grant of any relief under Order 39, Rules 1 and 2 had argued the matter, on which date, the petitioner had also sought for permission to file additional documents as a result of which no orders on the above application for injunction were passed either on 6th or 7th February, 1997 and the matter was adjourned to 10th February, 1997 without any order of injunction.

3.On 7th February, 1997, the meeting of the Councillors commenced at 12.00 Noon for election to the post of the President. At the said meeting five Councillors had filed their nominations for the post of the President and after scrutiny of the forms, they were duly accepted by the respondent No. 2. This process was completed at about 12.05 P.M. on 7th February, 1997. The respondent No. 2 granted 15 minutes time for the purpose of withdrawal and accordingly three candidates had withdrawn their nominations for the post of the President leaving in the field only the first petitioner and the 3rd respondent for straight contest for the post of the President. At this juncture, after the withdrawal of the three nominations at about 12.45 P.M. one Jeevanlal Babulal Kashikar entered the meeting hall and presented an unsigned and unstamped copy of the Court injunction passed by the Joint Civil Judge, Junior Division, Nagpur in Civil Suit No. 181/97 dated 6-2-1997. The said interim order had restrained the first petitioner from filing the nomination and from participating in the meeting being held on 7th February, 1997 and also prohibiting the first petitioner from contesting the election of the President. The respondent No. 2 thereafter had personally contacted the Registrar of the Court to verify whether any such order was passed or not and also recorded the statement of said Shri Jeevanlal Babulal Kashikar. In view of the above restraint order from the Court, the petitioner was prohibited from participating in the said meeting and also taking part in the contest of the President election. As a result, the respondent No. 2 in view of the above Court order did not permit the petitioner No. 1 to contest and declared the respondent No. 3 to have been elected as President unopposed.

4.The petitioner throug

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