Back
1952 Supreme(Nagpur) 92
HIGH COURT OF NAGPUR
Mangalmurti, Deo
AVI J CAMA – Appellant
Versus
BANWARILAL AGARWAL AND ORS – Respondent
Miscellaneous Petition No. 123 of 1952
Decided on : 08-08-1952
B R Mandlekar, R V S Mani, Advocates
The court has the discretion to issue a writ of quo warranto, but it will not do so where there is an alternative remedy available, where the relator is not a fit person to be entrusted with the writ, or where there has been undue delay in making the application.
Headnote:
ELECTION - NOMINATION - DISQUALIFICATION - ELECTION PETITION - REMEDY - WRIT OF QUO WARRANTO - DELAY - DISCRETION OF THE COURT - CITY OF NAGPUR CORPORATION ACT, 1948 (NAGPUR ACT II OF 1948), SECTIONS 14(4), 428(1), 428(2), 428(3), 428(4).
Fact of the Case:
The petitioner, a voter in ward No. 39 of the City of Nagpur, challenged the election of Respondent 1, who was declared elected from that ward, on the ground that he was not entitled to file nomination papers for two wards in view of Section 14(4) of the City of Nagpur Corporation Act, 1948.
Finding of the Court:
The court held that the petitioner was not entitled to a writ of quo warranto to declare her elected as she had not made Shri M.L. Singhai, another candidate from the same ward, a party to the proceedings, as required by Section 428(1) of the Act. The court also held that the petitioner could have challenged the election of Respondent 1 by filing an election petition under Section 428(1) of the Act, even before the election was notified under Section 16 of the Act. However, the court declined to exercise its discretion under Article 226 of the Constitution to issue a writ of quo warranto in favor of the petitioner, considering the delay in filing the petition and the petitioner's failure to object to the nomination of Respondent 1 at the proper time.
Issues: 1. Whether the petitioner was entitled to a writ of quo warranto to declare her elected. 2. Whether the petitioner could have challenged the election of Respondent 1 by filing an election petition under Section 428(1) of the Act, even before the election was notified under Section 16 of the Act. 3. Whether the court should exercise its discretion under Article 226 of the Constitution to issue a writ of quo warranto in favor of the petitioner.
Ratio Decidendi: 1. The petitioner was not entitled to a writ of quo warranto to declare her elected as she had not made Shri M.L. Singhai, another candidate from the same ward, a party to the proceedings, as required by Section 428(1) of the Act. 2. The petitioner could have challenged the election of Respondent 1 by filing an election petition under Section 428(1) of the Act, even before the election was notified under Section 16 of the Act. 3. The court declined to exercise its discretion under Article 226 of the Constitution to issue a writ of quo warranto in favor of the petitioner, considering the delay in filing the petition and the petitioner's failure to object to the nomination of Respondent 1 at the proper time.
Final Decision: The petition was dismissed.
1. This is a petition to issue a writ of quo warranto to Respondent 1, a writ of certiorari to quash the orders of Respondents 2 and 3 and a writ of mandamus directing Respondent 2 to declare that the Petitioner shall be deemed to have been elected.
2. The Petitioner is a voter in ward No. 39 of the City of Nagpur and was a candidate for election from that ward. The other two candidates from that ward were Respondent 1 and Shri M.L. Singhai, Advocate, who is not made a party to these proceedings. Respondent 1 filed a nomination paper for this ward and also one for Ward No. 40. Before scrutiny he informed Respondent 3 that he withdrew his nomination for ward No. 39. The Returning Officer accepted his nomination paper for that ward and rejected the one for ward No. 40. Respondent 1 then preferred an appeal against the order of rejection of his nomination paper for ward No. 40, but the appeal was dismissed by Respondent 2. Respondent 1 obtained 492 votes. Shri Singhai obtained about 324 votes. Respondent 1 was therefore declared elected.
3. This election is challenged by the Petitioner on the sole ground that in view of Section 14(4), City of Nagpur Corporation Act, 1948, (hereinafter referred to as the Act), Respondent 1 was not entitled to file nomination papers for two wards. According to her the election is therefore, null and void and as she is entitled to be declared elected Respondent 2 should be directed to make the declaration.
4. Before dealing with the case on merits we have to dispose of two preliminary objections namely, that this petition under Article 226 cannot be entertained and heard during vacation as it does not relate to the enforcement of Fundamental Rights and secondly that Shri M.L. Singhai is a necessary party. The Petitioner declined to add Shri Singhai as a Respondent and maintained that the petition should be heard in his absence.
5. If the election of Respondent 1 is set aside, the question would be whether there should be a fresh election or whether any other contesting candidate, can be declared ejected. Ordinarily, if the election of a candidate is null and void, there would be a fresh election; but Section 428, Sub-section (2), of the Act provides that if the District Court finds that the person whose election is objected to is disqualified for being a Councillor, it shall declare such person's ejection null and void, and that if it finds that the election is not a valid election it shall set it aside. In either case it shall direct that the candidate, if any, in whose favour the next highest number of valid votes is recorded after the said person or after all the persons who were returned as elected at the said election and against whose election 'no cause of objection is found', shall be deemed to have been elected.
6. The Petitioner evidently relies on this provision for a declaration that she shall be deemed to have been elected because she has secured more votes than Shri Singhai. Shri Singhai may have an objection to the election of the Petitioner. Respondent 1 has made an affidavit that Shri Singhai has made a complaint of corrupt practices against the Petitioner. She cannot, therefore, be declared elected without hearing any objections which Shri Singhai may have against her. Section 428(1) therefore provides: If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who, although not declared elected, had contested the election from the same ward or constituency as the case may be.
The learned Counsel for the Petitioner contends that she does not rely on Section 428 for the relief she claims. According to him Section 428 has too application. If that is so, we fail to see any provision of law under which the Petitioner can be declared elected if the election of Respondent 1 is found to be null and void or if it is set aside. The learned Counsel did not bring to our notice
