GANPAT SAHAI Vs. RAMA SHANKER

JUDGEMENT

(1.) The petitioner was declared elected as the President of the Municipal Board, Sultanpur. in the general election held on the 26th of October, 1953. Rama Shanker, advocate, opposite party No. 1 was the only rival candidate. After the petitioner had been duly declared elected the opposite party filed an election petition challenging the election of the petitioner which was duly referred to the District Judge of Faizabad for disposal as the election tribunal for the said Municipal election. The petitioner filed a reply to the election petition filed by the opposite party. A number of issues were framed by the tribunal. The tribunal by its order dated 20th of December, 1956, allowed the petition, set aside the election of the present petitioner and declared the respondent as duly elected. The decision of the tribunal in favour of the opposite party was based on its findings on three main issues, issues Nos. 2, 4(a) and 5(a). The present petition has been filed Under Article 226 of the Constitution for a writ of certiorari quashing the order of the election tri- -bunal.

(2.) The three issues on which the tribunal gave its findings against the present petitioner are as follows:

(3.) The counsel for the petitioner argued on issue No. 2 alone and rightly contended that if we are not in agreement with his contentions regarding issue No. 2, it will not be necessary for him to contend that the findings on other issues are incorrect. If the decision of the tribunal is upheld on any one of these three issues it is enough to dismiss the petition. Two main points, however; were urged by the counsel for the petitioner. One of these points is -in the nature of a preliminary objection to the maintainability of the petition before the tribunal and the second one is regarding the relief of declaration granted to the opposite party. This petition was originally filed on a court-fee stamp of Re. 1/-. An objection was raised by the present petitioner that the court-fee paid by the opposite party was insufficient. The tribunal decided that issue in favour of the present petitioner. An additional court-fee was demand-ed from the opposite party and time was granted by the tribunal to the opposite party to make good the deficiency in the court-fee. Within the time allowed by the tribunal the additional court-fee was paid. It is now contended by the counsel for the petitioner before us that the tribunal was not competent to grant time to the opposite party to make good the deficiency and as the petition when it was presented, to the State Government was deficiently stamped there was no proper petition which could be referred to the tribunal for decision. The decision, therefore, was without jurisdiction and must be quashed by this Court. In this connection it was also contended, by the petitioner that the tribunal having held that the petition was insufficiently stamped and that decision having become final, as the opposite party did not object to that decision, it is not now open to him to urge before this Court that the court-fee paid was sufficient. In our opinion there is no substance in this, contention. The petitioner has come to this Court under Article 226 of the Constitution. He has claimed a writ of certiorari and has impugned the order of the tribunal as being without jurisdiction on the ground that the petition which was presented to the State Government was no petition in the eve of law inasmuch, as the court-fee was not , sufficiently paid. It is therefore open to the respondent to contend that the petition which was presented to the State Government was a proper petition and was not deficiently stamped. The decision of the tribunal being in his favour, it was not necessary for him to have come up to this Court against the decision of the tribunal on one issue regarding the amount of court-fee paid. It is therefore necessary to examine whether the petition as was presented to the State Government was properly stamped or not. Reliance was placed by the petitioner on Article 22 of Schedule II of the U. P. Court-fees Act, 1870, which provides that the election petition questioning the election of any person (a) as a member of a local board other than a notified or town area committee, (b),. as a member of a notified or town area committee shall be stamped with court-fee of Rs. 125/- and Rs. 15/-. Relying upon I this Article it was urged that the court-fee payable was Rs. 125/-. Reliance was placed on Section 49 of the U. P. Municipalities Act which provides that the President of a Board, if he is not already a member of the Board. shall be ex officio member of the Board. Article 22 was added to I the U. P. Court-fees Act by Section 2 of the U. P. Court-fees (Amendment) Act, 1933. The direct election of the Chairman was introduced in the year 1951 but the Court-fees Act was not amended thereafter. The petitioner contends that as the President by virtue of Section 49 of the Municipalities Act becomes an ex officio member of the Board, when by a petition his election as President is challenged it is questioning the election of a member of a local board. In our opinion the contention is not sound. It may be that as soon as the President is elected he becomes an ex officio member of the Board but the petition which was filed was not a petition questioning the election of any person as a member of a local board. It was a petition questioning the election of the present petitioner as the President of the Municipal Board. Article 22, in our opinion, does not therefore apply to the petition filed by the opposite party in the present case. In the view which we take it is not necessary to examine the argument of the parties as regards the applicability of Section 6 of the Court fees Act and also the question whether the tribunal had power under Section 149 of the Civil Procedure Code to extend time for the payment of court-fee. The petitioner has contended that Section 6 applied to the present case and the State Government could not receive the petition as it was is sufficiently stamped. The opposite party's counsel had however contended that Section 6 creates a bar to the filing of any document or record in any Court of justice or to the receipt of such a document by any public officer. There is no bar to the receipt of such a document by the State Government. It was also urged by the respondent that Section 149, Civil Procedure Code applied to the present proceedings and the tribunal had jurisdiction to extend time.