SHRIPAD AMRIT DANGE Vs. SIR HARSIDDHBHAI V DIVATIA

JUDGEMENT

(1.) AT an election held in 1946 for the seat allotted to the Bombay City and Suburban Textile Unions Constituency in the Bombay Legislative Assembly, the petitioner was declared elected a member of the Bombay Legislative Assembly. Respondent No.4 was one of the contesting candidates and be preferred an election petition on June 12, 1946, to His Excellency the Governor of Bombay praying inter alia that His Excellency the Governor be pleased to appoint Commissioners for the trial of the petition, for a declaration that the election of the petitioner was void and for a declaration that he the respondent No.4 had been duly elected a member of the Bombay Legislative Assembly for the constituency. On receipt of the election petition a notification was issued from the Legal Department of the Government of Bombay, which after reciting that the election of the petitioner had been called in question by an election petition duly presented under Rule 110 of the Bombay Legislative Assembly Electoral (Elections and Election Petitions) Rules, 1936, proceeded to state: Now, therefore, the Government of Bombay in pursuance of the provisions of paragraph 4 of Part III of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, is hereby pleased to appoint 'the respondents Nos. 1, 2 and 3' as Commissioners for the trial of the said petition. . . In pursuance of Rule 116 of the Bombay Legislative Assembly Electoral (Elections & Election Petitions) Rules, 1936, the Government of Bombay is pleased to appoint Bombay as the place where the inquiry into the said petition shall be held. This notification was signed "by order of the Governor of Bombay, P. N. Moos, Secretary. " The first respondent as the President of the Commission addressed to the petitioner and others on July 20, 1946, a notice calling upon the petitioner to file his written statement on or before August 6, 1946. A preliminary hearing of the election petition took place on August 21, 1946, when the advocate for the petitioner raised several preliminary objections to the hearing of the petition. Respondents Nos. 1, 2 and 3, however, on September 18, 1946, communicated to the petitioner their judgment dated September 12, 1946, overruling the said objections and directing that the petition be taken up for further hearing.

(2.) THE petitioner thereupon filed this petition on September 28, 1946, contending that respondents Nos. 1, 2 and 3 had no authority or jurisdiction to entertain or hear the election petition inasmuch as there was no order or notification about their appointment by His Excellency the Governor exercising his individual judgment and that the notification under which respondents Nos. 1, 2 and 3 purported to act was not an appointment in accordance with Part III, paragraph 4, of the Order in Council of 1936. THEre was another ground also mentioned in the petition as to why respondents Nos. 1, 2 and 3 had no jurisdiction to proceed with the election petition, but the same was not pressed before me and I shall therefore not refer to the same. THE petitioner under the circumstances submitted and prayed that this Court should issue a writ of certiorari and a writ of prohibition or in the alternative an order under Section 45 of the Specific Relief Act against respondents Nos. 1, 2 and 3.

(3.) WHEN the rule reached hearing before me, a number of preliminary objections were sought to be raised by counsel for respondents Nos. 1, 2 and 3 and respondent No.4. WHEN I pointed out to them that none of these objections had been taken by them on any affidavit on the record before me, counsel for respondents Nos. 1, 2 and 3 submitted that all the objections which he was taking were covered within the general submission which was made in paragraph 2 of the affidavit of Wazkar, viz, "the present application is misconceived. " Counsel for respondent No.4 submitted that it was not necessary for his client to make any affidavit, that affidavits could only be made as regards facts and not contentions or submissions and that therefore the fact that no affidavit was filed on behalf of his client was not such as to prevent him from urging these preliminary objections. Even though this might serve respondent No.4 as an excuse of a sort, no such excuse was available to respondents Nos. 1, 2 and 8, who in fact had produced before the Court the affidavit of Wazkar. I pointed out to counsel for respondents Nos. 1, 2 and 3 that if his clients made an affidavit or produced an affidavit of somebody on their behalf, it was incumbent on them to give particular of their contention and submission that the application was misconceived. I strongly deprecate the practice of merely stating in an affidavit or pleading that; the suit or the application is misconceived without saying anything more. The plaintiff or the applicant is entitled to particulars from the defendant or the respondent as to why it is contended that the suit or the application is misconceived. No doubt in his pleadings or affidavit a party is not bound to disclose his evidence, but he is certainly bound to give sufficient particulars of his contentions when in the absence of such particulars the other side would either be taken by surprise or be embarrassed in the conduct of the proceedings. It would not do merely to say that the suit or the application was misconceived. The party contending that must specify or particularise why he contends that the suit or the application is misconceived. If there are any facts which he relies upon for that purpose, those facts should be stated in his pleading or affidavit. If it is merely the position in law which he relies upon, he must set out with sufficient particulars the position in law on which he bases his ultimate submission that the suit or application is misconceived. On my pointing out to counsel for respondents Nos. 1, 2 and 3 this particular position, he applied for an amendment of the affidavit of Wazkar by pleading: I respectfully submit that the order appointing the Election Tribunal cannot be challenged in this Honourable Court by reason of the provisions of the Government of India Act 1935. I further submit that this Honourable Court has no jurisdiction to direct the issue of a writ of certiorari or a writ of prohibition or to grant an order under Section 45 of the Specific Relief Act as the Tribunal is not a Court of inferior jurisdiction. Counsel for respondent No.4 had no obstacle in the way of any affidavit in his path. WHEN asked by the Court to formulate his points of opposition, he handed in to the Court what he called "issues" wherein he raised various points, those which are important for the purpose of this judgment being: 1. The petition is not maintainable for non-joinder of v. S. Gaikwad a respondent to the Election Petition; 2.This Court has no jurisdiction to issue a writ of certiorari or of prohibition against the Election. Tribunal as it is not an inferior Court; and 3 .This Court has no jurisdiction to inquire into the validity of order appointing the Tribunal. He also put in issue the question as to the Commission having been validly appointed and having jurisdiction to hear the election petition. The last contention was, however, on the merits of the petition itself.