RAM NATH Vs. RAMESH

JUDGEMENT

(1.) ELECTIONS to the Municipal Committee, Haryana, in the district of Hoshiarpur, took place on June 18, 1972, and the first meeting of the elected members of the Committee was held on July 8, 1972, for the administration of oath and for the co-option of two women members and one mem- ber of the Scheduled Castes. Proposals were invited for co-option of two women members under the provisions of Section 12-B of the Punjab Municipal Act, 1911, as amended, hereinafter called the Act, and thereafter voting was held by secret ballot. All the members were supplied two ballot papers each on which the names of all the four contesting women candidates were written. The result of the polling was that three of the candidates got four votes each and the fourth candidate got three votes. Three ballot papers were rejected. The convener of the meeting was of the opinion that the members of the Committee having not been able to co-opt two women members and, therefore reported to the Government for nomination of two women members under Section 12-E of the Act. The Government nominated Smt. Sohan Kaur and Smt. Harbans Kaur as members of the Municipal Committee, Haryana, by a notification which appeared in the Punjab Government Gazette dated July 28. 1972. Thereafter, a meeting of the Committee was held on August 4, 1972, for the election of President and Vice-President. In that meeting, the two women candidates nominated by the Government were administered oath of allegiance and thereafter the elections for the offices of the President and Vice-president were held. Ramesh, respondent No. 1, contested the election for the office of the President against Ram Nath appellant but got defeated. He then filed Civil Writ No. 2687 of 1972 in this Court challenging the co-option of the two women members and the consequent election of the President and the Vice-President That petition was contested by Ram Nath on various grounds but was accepted, by the learned Single Judge on October 10, 1972. The present appeal under clause X of the Letters Patent is directed against that judgment.

(2.) ONE of the points argued before the learned Single Judge was that the method adopted by the Convener of the meeting on July 8, 1972, for the co-option of two women members under the provisions of Section 12-B of the Act by distributing two ballot papers containing the names of all the four candidates to the members for casting their votes instead of one ballot paper containing the names of all the contesting candidates, was illegal being against the rules. The learned Single Judge accepted this contention in view of his judgment in Civil Writ No. 2734 of 1972, (Narinder Kumar v. State of Punjab), decided on 18-9-1972 wherein a similar procedure had been adopted by the Convence which was declared illegal by him. He consequently declared the co-option of respondents Nos. 4 and 5 to the appeal, nominated by the Government, as illegal. He also accepted the plea that the election of the President and the Vice-President held on August 4, 1972, was illegal as respondents Nos. 4 and 5, who were not entitled to attend that meeting, attended that meeting and cast their votes, in view of his own judgment in Ram Niwas v. State of Punjab, Civil Writ No, 2674 of 1972, decided on 3-10-1972 (Punj ). The learned Judge did not accept the plea of the appellant that the writ petitioner, after the co-option of the two women members by the Government under Section 12-B of the Act, took part in the election of the President and, therefore, was estopped from filing the writ petition. Consequently, the writ petition was accepted and the co-option of respondents Nos. 4 and 5 and the elections of the President and Vice-President were quashed.

(3.) IT has been argued by the learned counsel for the appellant that the learned Single Judge erred in law in not accepting his plea that the writ petitioner was estopped from challenging the co-option of the two members, respondents Nos. 4 and 5, and the elections of the President and the Vice-president held on August 4, 1972, on the ground that he knowingly, after the co-option of the two women members, not only took part in the meeting held on August 4, 1972, but also contested the election for the office of President. Reliance is placed, on a Division Bench judgment of the Bombay High Court in Gandhinagar Motor Transport Society v. State of Bombay, AIR 1954 Bom 202, in which the difference between the scope of ordinary legal remedies and extraordinary legal remedies under Article 226 of the Constitution has been vividly pointed out. The relevant observations are contained in paras 4 and 5 of the report which bear reproduction and are, therefore, reproduced. The observations are,-- " (4) Now, as we shall presently point out, the English Courts have taken the view, and in our opinion rightly, that before a question of jurisdiction is raised on a petition, objection to jurisdiction must be taken before the tribunal whose order is being challenged. It is not as if by the petitioner not challenging the jurisdiction of the tribunal that he confers jurisdiction upon that tribunal if that tribunal has no jurisdiction. But what the English Courts have said is that the High Court has been asked to exercise a special jurisdiction, not an ordinary jurisdiction, and the High Court is entitled to know what the tribunal has to say on the question of jurisdiction which the petitioner wants to agitate before the Court. There is another principle underlying this view, and that is that the tribunal which is brought before the Court should itself be given an opportunity to decide that it has no jurisdiction, before the High Court is called upon to give its decision. It must be borne in mind that in exercising its jurisdiction under Articles 226 and 227 the High Court is not exercising an ordinary jurisdiction. It is always open to a petitioner to assert his rights in a suit properly filed, but when he chooses to assert his rights by calling upon the High Court to exercise its special jurisdiction, the High Court must itself lay down certain principles for the exercise of that jurisdiction and must not make the exercise of that jurisdiction a matter of ordinary occurrence. A suit may well be filed within the period of limitation, the Judge trying the suit does not non-suit the plaintiff because he came to Court towards the end of the period of limitation; but this Court tells the petitioner 'you must come to this Court expeditiously'. Equally so a defendant may not raise the question of jurisdiction in the Court of first instance, he may not raise the question of jurisdiction in the appellate Court, he may postpone raising the question of jurisdiction up to the stage of the Privy Council or the Supreme Court, yet if the Court has no jurisdiction, the highest Court in the land will allow the point to he raised and decide it in favour of the defendant. But the principle is different when the petitioner comes to this Court for a writ. The Court must tell the petitioner: