ABDUL BAQI KHAN Vs. SIRAJ-UL-HASAN

JUDGEMENT

(1.) This is a question of procedure arising out of an election petition consequent upon a recent municipal election in Allahabad which has been referred to us by the Commissioner, the tribunal appointed for the trial of the petition, such reference being in his opinion a question of law, under Section 23, Sub-section (2), Clause (e), of the Municipalities Act.

(2.) The point may be shortly stated in this way: Is it competent for an unsuccessful candidate petitioning against the election of more than one successful candidate, to join a claim that all or any of the successful candidates, being more than one, be unseated, in one petition? In this particular case there were six candidates, three of whom were elected, the present petitioner being the 4th, two other persons who were formerly respondents and have been struck out, being 5th and 6th on the poll. The petition claims that upon various grounds raising questions of legality, corrupt practices, personation and so forth, the three successful candidates should be declared not to have been duly elected, or, in other words, unseated, and that the petitioner and his two colleagues (the two other unsuccessful candidates) should be declared elected in their places as members of the Board or that vacancies should be declared in respect of those candidates decided to be unseated. A further claim is made that in view of the practices alleged, the Court should take proceedings under other sections of the Municipalities Act against the respondents.

(3.) The provisions with regard to election petitions and the procedure thereunder are contained in Sections 19 to 26 of the Municipalities Act and, with one possible exception, which has given rise to the main argument on behalf of the respondents in this case, seem to us to be clear and free from any difficulty, By Section 19 the lawful election of a candidate as a member of the Board may be questioned in an election petition on certain grounds. By Section 20 such petition must be presented within fifteen days of the election day and shall contain a summary of the grounds on which the election is challenged. Further, by the same section a right is given either to an unsuccessful candidate or to ten or more electors to present the petition. In the case of the candidate presenting the petition he must be one who claims to be declared elected in the room of the person whose election is questioned. If this provision stood alone it would appear to indicate that the petition in the case of an unsuccessful candidate claiming to be elected in the place of the successful candidate who is unseated must be confined to one successful candidate. The result of this would be a somewhat clumsy arrangement, because there is nothing in the Act which indicates that if an unsuccessful candidate, acting upon information in his possession believes that he has grounds for unseating all three but is uncertain of his success against any one of the particular individuals, he may not, if ho wishes to make assurance doubly sure, claim that each of the three be unseated and that he be elected in the place of either one or other of those whose election is declared void. He would be compelled in that case to file separate petitions against each. Clause 23, however, gets over this difficulty. By Sub-section 2(a) it is provided that two or more persons whose election is called in question may be made respondents to the same petition and their cases may be tried at the same time, and any two or more election petitions may be heard together, but, so far as is consistent with such joint hearing, the petition shall be deemed to be a separate petition against each respondent. That section is perfectly clear. It provides in unmistakable language for a joint petition against more than one respondent; otherwise it would be inappropriate to deem it to be a separate petition; if only separate petitions were allowed, there would be no necessity for the Legislature to provide for a petition to be deemed to be separate against each respondent. After all, the argument would be the same if the unsuccessful candidate filed a separate petition against each of three successful candidates claiming the seat of each. He could not fill more than one vacancy, if all his petitions succeeded. The word "petition" is clearly used in the section in two senses. In the earlier part of the clause "petition" means the paper or complaint which is originally presented and which must be presented within 15 days and must contain the summary charges. That is the petition which is in question in this reference, the contention being that it is bad ab initio because presented against three respondents. But in the latter part of the section the word "petition" clearly means the procedure under which the complaints against the election of a candidate are investigated and decided. The word "petition" is quite common both in familiar use and in legal use in both senses and what that clause clearly provides is that a joint petition filed against one or more respondents who have been elected may be heard as one or as two, and usually for the purpose of evidence be treated as separate petitions against each individual, giving the court a wide discretion for the conduct of its own proceeding but protecting the respondents against any unfair breach of the laws of evidence. This seems to us a perfectly reasonable provision on general grounds. The mere fact that so short a time as 15 days is allowed for the presentation of the petition places a very heavy burden indeed upon the petitioner to prepare any sort of case at all, in a matter covering such a wide area as a contested election, and it is far easier as a matter of procedure for the court in the exercise of its discretion to separate cases which have once been united in a joint complaint, than it is to consolidate several cases which have been originally filed as separate and distinct matters. So far as the consequences of the proceeding are concerned it is really unimportant, except for the purpose of qualifying the candidate who presents the petition to present the petition by declaring himself ready to fill a vacancy which he asks to be created, whether as a matter of law the court decides in its discretion to declare the unsuccessful candidate elected in the place of the candidate unseated or whether it prefers to declare that the seat is merely vacant and that a fresh election should be held. That decision does not in the least depend upon the claim made by the candidate presenting the petition, but upon the general circumstances of the case and the exercise of the court s discretion, which is wide under the Act.