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: O R D E R :
(1) S.B. Civil Writ Petition No.1836/2009.
(Prem Kumar Dhandu Vs. State of Rajasthan & Others)
(2) S.B. Civil Writ Petition No.1835/2009.
(Hanuman Prasad Vs. State of Rajasthan & Others)
(3) S.B. Civil Writ Petition No.1737/2009.
(Jai Narayan Vs. State of Rajasthan & Others)
(4) S.B. Civil Writ Petition No.1781/2009.
(Ganpat Singh Vs. State of Rajasthan & Others)
(5) S.B. Civil Writ Petition No.1839/2009.
(Prem Dhandu Vs. State of Rajasthan & Others)
DATE OF ORDER : March 20th, 2009.
P R E S E N T
HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS
Mr. Rishabh Sancheti/Mr. K.N. Joshi/
Mr. V.K. Mathur/Mr. Rakesh Arora/Mr. Pankaj Sharma
for the petitioners.
Mr. R.L. Jangid, Addl. Advocate General.
Mr. S.G. Ojha, Mr. D.D. Chitlangi, Mr. S.L. Jain,
Mr. Vikas Balia/Mr. Nihar Jain, Advocates for the
respondents/applicant(s).
Reportable BY THE COURT :
In all the above writ petitions, the petitioners are
seeking direction for quashing impugned election notice
dated 27.02.2009 of Chairman and, it is, further, prayed
that in the alternative the impugned notice may be kept in
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In all the above writ petitions, the election of
Chairman of the Municipal Board, Rawatsar/Sojat/Nokha is
under challenge; more specifically, in S.B. Civil Writ
Petition No.1836/2009, Prem Kumar Dhandu Vs. State &
Others and S.B. Civil Writ Petition No.3260/2009,
Hanuman Prasad Vs. State & Others, the petitioners are
residents of Ward No.14 and they are challenging the
election of Chairman of Municipal Board, Rawatsar which
has fallen vacant due to resignation of the Chair-person
Abhishek Matoria, who has become Member of the
Legislative Assembly. In S.B. Civil Writ Petition
No.1737/2009, Jai Narayan Vs. State & Others and S.B.
Civil Writ Petition No.1781/2009, Ganpat Singh Vs. State &
Others, the challenge is made by the voters of Ward No.18
of Sojat City (District Pali) where the post of Chairman has
fallen vacant due to death of elected Chairman Bhanwar
Lal on 11.04.2008. In S.B. Civil Writ Petition
No.1839/2009, Prem Dhandu Vs. State & Others, the
petitioner being voter of Ward No.16, Nokha is challenging
election of Chairman of the Municipal Board, Nokha where
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The petitioners are residents of their respective Ward
in different towns where the seat of Ward Member is
vacant and no election of Ward Member has been
conducted after resignation of Ward Member of the said
area; more specifically, in Rawatsar the election of Ward
Member of Ward No.14, in Sojat City the election of Ward
Member of Ward No.18 and in Nokha the election of Ward
Member of Ward No.16 have not been conducted so far
and while ignoring this fact the election programme for
conducting election for the post of Chairman was
announced and election for the post of Chairman was
scheduled on 06.03.2009. In all these writ petitions, the
grievance of the petitioners is that they are desirous of
contesting election of their respective Ward as they are
fulfilling the necessary eligibility criteria but no election has
been conducted for Ward Member; and, on the contrary,
the Election Commission is going to fill up the vacancy of
Chairman which fell vacant due to either resignation or
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For the above reason, in all these writ petitions, the
petitioners have raised mainly the ground that the
respondents cannot conduct election of Chairman of the
Municipal Board without holding first the election of Ward
Member of the vacant seat, therefore, holding election of
Chairman before election of Ward Member is illegal,
unconstitutional and, therefore, the respondents may be
restrained from doing so. For the said relief, the
petitioners have raised so many grounds and learned
counsel for the petitioners have also argued the matter at
length.
Learned counsel for the petitioners vehemently argue
that the petitioners being citizens of India have right to
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(1) A of the Constitution of India.
Learned counsel for the petitioners argued that the
respondents' action is violative of Article 14 of the
Constitution of India also. The respondents are snatching
the right of the electorate of their respective Ward which is
arbitrary and has no rationale or logic in undertaking the
election of Chairperson before filling the vacant seat of
Ward Member, more so when there is mandate to elect
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Learned counsel for the petitioners while inviting
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It is contended by learned counsel for the petitioners
that the Rajasthan Municipalities Act, 1959 deals with all
matters relating to urban local self governance institutions
in the State and, thereunder, there is provision for
composition of the Municipal Board. Under Section 24 of
the Act of 1959 qualification of the Ward Members are
enumerated which the petitioners possess and under
Section 27 of the Act of 1959 there is express provision
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Learned counsel for the petitioners invited attention
of the Court towards judgments of the Supreme Court,
reported in (2007) 3 SCC 184, Raja Ram Pal Vs. Hon'ble
Speaker, Lok Sabha & Others; and, judgment rendered in
the Writ Petition (Civil) No.161 of 2004, decided on
23.02.2009, in the matter of People's Union for Civil
Liberties Vs. Union of India & Others. Learned counsel for
the petitioners also cited the judgment reported in AIR
SCW 346; and, while citing the above judgments, it is
vehemently argued that the respondents' action of holding
the election before conducting election of the Ward
Member is illegal, therefore, the so called election
programme may be quashed.
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Per contra, before entering into merit, learned
counsel for the respondents as well as Mr. R.L. Jangid,
learned Addl. Advocate General vehemently argued that
identical writ petitions have been dismissed by the learned
Single Judge of this Court on 04.03.2009 at Jaipur Bench
vide judgment rendered in S.B. Civil Writ Petition
No.2579/2009, Kedar Nath Gupta Vs. State & Ors. and 3
other writ petitions (Jaipur Bench), in which, it has been
held that no interference in the election process can be
made because the process of election has already
commenced, therefore, on this ground alone, this writ
petition deserves to be dismissed. Learned Addl.
Advocate General vehemently argued that in view of the
recent pronouncement of the Hon'ble Supreme Court in the
case of Official Liquidator Vs. Dayanand, reported in
(2008)10 SCC 1, no contrary view can be taken in the
matter and prayed that for maintaining the judicial
discipline this Court may not take a different view than the
one taken by the learned Single Judge of this Court at
Jaipur Bench in the aforesaid judgment dated 04.03.2009
and, in the present controversy, since identical question is
involved, the said judgment is required to be followed.
Learned counsel for the State specifically drew my
attention towards para 78 and 90 of the judgment
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rendered in Official Liquidator's case (supra), in which, the
Hon'ble Supreme Court has while holding that the Courts
are required to maintain judicial consistency observed as
under :
“78. There have been several instances of
different Benches of the High Courts not
following the judgments/orders of coordinate
and even larger Benches. In some cases, the
High Courts have gone to the extent of
ignoring the law laid down by this Court
without any tangible reason. Likewise, there
have been instances in which smaller
Benches of this Court have either ignored or
bypassed the ratio of the judgments of the
larger Benches including the Constitution
Benches. There cases are illustrative of nonadherence
to the rule of judicial discipline
which is sine qua non for sustaining the
system. In Mahadeolal Kanodia v.
Administrator General of W.B. This Court
observed: (AIR p.941, PARA 19)
“19.... If one thing is more necessary in law
than any other thin, it is the quality of
certainty. That quality would totally
disappear if Judges of coordinate jurisdiction
in a High Court start overruling one
another's decision. If one Division Bench of
a High Court is unable to distinguish the
earlier decision is wrong, itself gives effect to
that view the result would be utter
confusion. The position would be equally
bad where a Judge sitting singly in the High
Court is of opinion that the previous decision
of another Single Judge on a question of law
is wrong and given effect to that view
instead of referring the matter to a larger
Bench. In such a case lawyers would not
know how to advise their clients and all
courts subordinate to the high Court would
find themselves in an embarrassing position
of having to choose between dissentient
judgments of their own high Court.”
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90. We are distressed to note that despite
several pronouncements on the subject,
there is substantial increase in the number of
cases involving violation of the basics of
judicial discipline. The learned Single Judges
and Benches of the High Courts refuse to
follow and accept the verdict and law laid
down by coordinate and even larger Benches
by citing minor difference in the facts as the
ground for doing so. Therefore, it has
become necessary to reiterate that
disrespect to the constitutional ethos and
breach of discipline have grave impact on the
credibility of judicial institution and
encourages chance litigation. It must be
remembered that predictability and certainty
is an important hallmark of judicial
jurisprudence of conflicting judgments of the
superior judiciary will do incalculable harm to
the system inasmuch as the courts at the
grass roots will not be able to decide as to
which of the judgments lay down the correct
law and which one should be followed.”
Further, learned Addl. Advocate General as well as
other learned counsel for the respondents vehemently
argued that the petitioners have no case because, at
present, they are only voters of the area and for the post
of Chairman only the Ward Members can cast vote. Here,
in this case, the petitioners are residents of the area in
which the seat of Ward Member is vacant and, at the
stage, it is not necessary for the respondents to first
conduct the election of Ward Member before conducting
the election of the post of Chairman only for the reason
that the vacancy arose due to resignation/death of the
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member. For this purpose, learned counsel for the
respondents invited attention towards the provision under
the Act of 1959 whereunder it is provided that the
Chairman shall be elected in accordance with the
provisions made in this behalf by elected members of the
Board; meaning thereby, at the time of conducting the
election of Chairman, only the existing members are
required to elect from amongst themselves the Chairman
or Vice Chairman. It is urged that in the judgment dated
04.03.2009 delivered by the learned Single Judge of this
Court at Jaipur Bench, in S.B. Civil Writ Petition
No.2579/2009, Kedar Nath Gupta Vs. State & Others, it is
held that the post of Chairman can be filled in by elected
members of the Board from amongst themselves.
Similarly, under Rule 95 of the Rajasthan Municipalities
(Election) Rules, 1994, under sub-rule (2), it is provided
that the date for such bye-election along with notice period
of members/councilors/corporators shall be fixed by the
State Election Commission. The Election Commission,
while filing reply, invited attention of the Court towards the
fact that the election programme was issued by the
Election Commission on 26.02.2009 for all the Municipal
Boards where the vacancy of Chairman arose by holding
bye-election on 06.03.2009 and said notification is not
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under challenge in all these writ petitions, therefore,
without challenging the decision of the State Election
Commission dated 26.02.2009 no relief can be granted to
the petitioners. It is urged that the controversy has
already been set at rest by the judgment rendered by the
learned Single Judge of this Court at Jaipur Bench in Kedar
Nath Gupta's case (supra), in which, it is held that no
interference in the election process can be made after
commencement of the election process, therefore, this writ
petition may be dismissed while following the judgment of
the co-ordinate Bench of this Court.
I have heard learned counsel for the petitioners as
well as learned Addl. Advocate General for the State and
learned counsel appearing for the respondents/applicants.
First of all, it is not disputed before me that a
judgment has been rendered by the co-ordinate Bench of
this Court at Jaipur Bench on 04.03.2009, whereby, S.B.
Civil Writ Petition No.2579/2009 and 3 other writ petitions
were dismissed, in which, challenge was made to the order
issued by the State Election Commission on 26.02.2009,
by which, direction was issued for holding election to the
office of the Chairman of various Municipal Boards and
Mayor of Municipal Corporation and, in fact, order dated
26.02.2009 is not under challenge in the present writ
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petitions. Further, in the judgment dated 04.03.2009, it
has been held that it is not appropriate to interfere in the
election process which has already been commenced. The
co-ordinate Bench of this Court, in the aforesaid case,
considered large number of judgments of the Supreme
Court and, thereafter, delivered the judgment. Similar
question was raised in those writ petitions which is
apparent from the facts stated in the judgment dated
04.03.2009.
Although learned counsel for the petitioners made
efforts to satisfy this Court to decide the case on merit and
for the said purpose, certain arguments have been
advanced; but, in my opinion, when the petitioners have
not challenged the order dated 26.02.2009, then,
obviously no relief can be granted by this Court because
the basic order of the State Election Commission for
conducting the election is not under challenge. The said
order has been placed on record by way of filing Annex.-1
with the writ petition. In that view of the matter, the very
bone of challenge is lacking in the present writ petitions.
Further, these writ petitions deserve to be dismissed
on yet another ground that these petitioners are residents
of the wards for which they agitate there is no
representation; but, no grievance was raised by the
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petitioners who are residents of the said area to hold the
election of Ward Member but the petitioners have chosen
to challenge the election of Chairman only when the
election programme was issued by the respondents;
meaning thereby, their intention is to stop the election of
Chairman and restrain the respondents from holding
election of Chairman of the Municipal Board. Therefore,
the intention of the petitioners can be gathered from the
fact that no writ petition was filed by the petitioners being
citizens of the ward for holding election of the Ward
Member when the post fell vacant. Now, a hypothetical
ground has been raised by the petitioners that they are
citizens of the particular Ward and if the election of the
Ward Member is not conducted first, then, they will not be
able to contest the election of Chairman and their right to
cast vote for the post of Chairman will be frustrated.
Such assertion is only airy-nothing because they will
certainly be elected Ward Member or not and will they
have any right to cast vote for Chairman is as yet only
pretension and not a fact in the eye of law. Therefore,
otherwise also, the plea of the petitioners is baseless. The
right to cast vote is statutory right. In the judgment
rendered by the apex Court, reported in (2007) 3 SCC 184
(supra), it is categorically held that right to vote and be
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represented is integral to our democratic process, it must
be remembered that it is not an absolute right. Para 162
of the judgment runs as under :
“While it is true that the right to vote and be
represented is integral to our democratic
process, it must be remembered that it is not an
absolute right. There are certain limitations to
the right to vote and be represented. For
example, a citizen cannot claim the right to vote
and be represented by a person who is
disqualified by law or the right to be represented
by a candidate he votes for, even if he fails to
win the election. Similarly, expulsion is another
such provision. Expulsion is related to the
conduct of the Member that lowers the dignity of
the House, which may not have been necessarily
known at the time of election. It is not a
capricious exercise of the House, but an action to
protect its dignity before the people of the
country. This is also an integral aspect of our
democratic set up. In our view, the power of
expulsion is not contrary to a democratic
process. It is rather part of the guarantee of a
democratic process. Further, expulsion is not a
decision by a single person. It is a decision
taken by the representatives of the rest of the
country. Finally, the power of expulsion does
not bar a Member from standing for re-election
or the constituency from electing that Member
once again.”
In this view of the matter, a statutory right cannot
necessarily be a fundamental right and the right to
represent or to be represented, which is statutory right,
cannot be claimed as fundamental right. The petitioners
being citizens cannot raise voice against the election of the
Chairman on the ground that before holding the election of
the Chairman the seat of the Ward Member which is vacant
must be filled up, therefore, the right of the citizens of the
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Ward is going to be frustrated. Such contention is only
imaginary and for that the writ petition cannot be
maintained.
I have also perused the judgment dated 04.03.2009
delivered by this Court at Jaipur Bench in S.B. Civil Writ
Petition No.2579/2009 and 3 other writ petitions, out of
which, S.B. Civil Writ Petition No.2523/2009 was in respect
of Municipal Board, Rawatsar. Having considered large
number of judgments of the Supreme Court, the learned
Single Judge has dismissed the writ petitions and held that
after commencement of the election process no
interference by this Court is required. The relevant
portion of the judgment runs as under :
“Article 243ZG of the Constitution in its
clause (b) provides that notwithstanding
anything contained in the Constitution, no
election to any Municipality shall be called in
question except by an election petition
presented to such authority and in such
manner as is provided for by or under any
law made by the Legislature of a State.
Indisputably, Section 66 of the Act of 1959
provides that election of a chairman or vice-
chairman under section 65 of the said Act
shall not be called in question except by an
election petition presented to the District
Judge sitting at the place where the
municipal office is situated; or where there
is no such District Judge, the Civil Judge so
sitting; or any other Judge specially
appointed by the State Government for the
purpose. It is thus obvious that in terms of
provisions of Article 243ZG, election to the
office of Chairman / Mayor as ordained by
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the Constitution can be called in question
only “in such a manner as is provided for by
or under any law made by the Legislature of
a State”, which in the present case is the
Act of 1959.
Contention that such a bar would not
be attracted at pre-election stage, cannot
be upheld in view of catena of judgements
of Supreme Court where a pari materia
provision contained in Article 329(b) of the
Constitution has been interpreted to mean
that such bar would be attracted even at
pre-election stage and remedy of writ
petition under Article 226 would not be
available if the process of election has
commenced. The only remedy available
then would be by way of challenge to such
election in an election petition as per the
procedure provided under the Statute in
question.
Constitution Bench of Supreme Court
in N.P. Ponnuswami vs. The Returning
Officer, Namakkal Constituency, Namakkal,
Salem Distt. & Ors.-AIR (39) 1952 SC 64
while interpreting the word `election' as
used in Part XV of the Constitution while
considering a similar argument held “that
the word `election' has been used in Part
XV of the Constitution in a wide sense, that
is to say, to connote the entire procedure to
be gone through to return a candidate to
the legislature.” Their Lordships held that
this word has got a wider meaning and may
be taken to embrace the whole procedure
which consists of several stages and
embraces many steps whereby an “elected
member” is returned, whether or not it be
found necessary to take poll. It was held
that word `election' has not been used in a
narrow sense. While interpreting the
phraseology “no election shall be called in
question”, it was held that the law of
elections in this country does not
contemplate that there should be two
attacks on matters connected with election
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proceedings, one while they are going on,
by invoking the extraordinary jurisdiction of
the High Court under Article 226 of the
Constitution, the ordinary jurisdiction of the
Courts having been expressly excluded and
another, after they have been completed,
by means of an election petition. Where a
right or liability is created by a Statute,
which gives a special remedy for enforcing
it, the remedy provided by that Statute only
must be availed of.
This issue again engaged attention of
the Supreme Court in in Nanhoo Mal & Ors.
vs. Hira Mal & Ors.-(1976) 3 SCC 211
wherein the Supreme Court while relying on
its earlier judgement in N.P. Ponnuswami,
supra, held that challenge to an election
through a writ petition before the High
Court is not permissible even on the ground
of non compliance of statutory provisions, if
the Statute provides for exclusive
jurisdiction to the District Judge empowered
to determine the material effect of such
non-compliance. In Mohinder Singh Gill &
Anr. vs. The Chief
Election Commissioner, New Delhi & Ors.(
1978) 1 SCC 405, the Supreme Court
again reiterated the same view by holding
that no litigative enterprise in the High
Court or other Court should be allowed to
held up the on-going electoral process. It
was held that Article 329(b) is a blanket ban
on litigative challenges to electoral steps
taken by the Election Commission and its
officers for carrying forward the process of
election to its culmination in the formal
declaration of the result. Election in this
context is a very wide connotation
commencing from the notification calling
upon a electoral to elect and culminating
into final determination of the returned
candidate.
The Supreme Court in S.T. Muthusami
vs. K. Natarajan & Ors.-AIR 1988 SC 616
while dealing with the question whether it
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was appropriate for the High Court to
interfere with the election process at an
intermediate stage after the
commencement of the election process and
before the declaration of the result of the
election to the office of the Chairman of a
Panchayat Union under the provisions of the
Tamil Nadu Panchayats Act, 1958 on the
ground that there was an error in the
matter of allotment of symbols to the
candidates contesting such election.
Reversing the judgment of High Court, the
Supreme Court while relying on its
Constitution Bench judgement in N.P.
Ponnuswami, supra, held that the
interference in exercise of its jurisdiction by
the High Court under Article 226 of the
Constitution was not justified. The parties
who are aggrieved by the result of the
election, can question validity of election by
an election petition, which is an effective
alternative remedy. It may be noted that
the bar similar to the one contained in
Article 243ZG regarding election disputes to
the Municipalities, is also created in Article
243O of the Constitution for such disputes
concerning elections to Panchayati Raj
Institutions, which are both in pari materia
with the provisions contained in Article 329
(b), supra. In subsequent judgements of
Jaspal Singh Arora vs. State of M.P. & Ors.(
1998)9 SCC 594 and Gurdeep Singh
Dhillon vs. Satpal & Ors.-(2006) 10 SCC
616 and of this Court in Shanti Lal & Anr.
vs. State of Rajasthan & Ors.-1995 (3) WLC
(Raj.) 580 also it was held that the election
to the office of President of Municipal
Corporation is not open to challenge in the
writ petition as the same is barred by Article
243ZG of the Constitution.
It is trite law that right to elect or to
be elected or to challenge an election, is
neither a fundamental right nor a common
law right but a statutory right and therefore
disputes relating to such right would be
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regulated by the conditions prescribed in
the enactment in which such right is
created. Reference in this connection may
be usefully made to the judgement of the
Supreme Court in C. Narayanaswamy vs.
C.K. Jaffer Sharief &
Ors.-1994 Supp (3) SCC 170 and Gajanan
Krishnaji Bapat and Anr. vs. Dattaji
Rathobaji Meghe and Ors.-(1995) 5 SCC
347.
Even otherwise, the contention that
their being conflict about the mode of
election to the office of Chairman / Mayor
between the provisions contained in the
Ordinance of 2008 and the Election Rules of
1994, the Election Rules of 1994 to that
extent cannot be taken to have been saved
by virtue of saving clause contained in
Section 371 of the said Ordinance and
therefore what
was not saved would not be revived by
virtue of Section 3 of the Ordinance of 2009
read with Section 6 of the General Clauses
Act, I do not find any substance in this
submission either, because substantive
provision contained in Section 65 of the Act
of 1959 itself in its sub-section (2) provides
that “the Chairman shall be elected, in
accordance with the Rules made by the
State Government in that behalf, by the
elected members of the Board from
amongst themselves”. When the parent Act
of 1959 itself provides for election to the
office of Chairman by the elected members
from amongst themselves, the so called
conflict would hardly be of any significance
so as not to save the Election Rules of 1994.
In view of the aforesaid discussion, I
do not deem it appropriate to make
interfere in these matters as the process of
election has already commenced.
In the result, the writ petitions are
dismissed. Cost made easy.”
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Therefore, in view of the apex Court judgment in the
aforequoted Official Liquidator's case; and, more
specifically, in view of the fact that order dated 26.02.2009
of the State Election Commission is not at all under
challenge in these writ petitions, I am of the opinion that it
is not proper to take a contrary view than the judgment
rendered by the co-ordinate Bench because it is not
permissible under Article 141 of the Constitution of India
after the judgment of the Hon'ble Supreme Court in Official
Liquidator's case (supra).
As a result, all these writ petitions are dismissed.
No order as to costs.
(Gopal Krishan Vyas) J.
Ojha, a.
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