1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : 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. Rishab 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 2 abeyance and a mandamus may be issued directing the respondents to abide by the mandate of law and conduct the election of Ward Member of the vacant seat before the election of Chair-person. 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 3 the post of Chairman has fallen vacant due to the then Chairman Kanhaiya Lal Jhanwar having been elected Member to the Legislative Assembly. All these writ petitions are related with election of Chairman of Municipal Board, Rawatsar/Sojat/Nokha and, therefore, the same are being decided by this common order/judgment. 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 4 death of the then Chairman. As per the petitioners, the respondents are violating the right of the citizens of the Ward because if election of Chairman will be conducted then citizen of the respective Ward would lose their valuable right of representation if the vacancy remains unfilled and if the election of Chairman is conducted which is in gross violation of the rights of the electorate of the said constituency. Further, it is submitted that if election will be conducted without first holding election of the Ward Member, then, certainly the rights of the citizens of the said Ward will be frustrated. 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 5 participate in the democratic form of governance and such right is being totally violated by the impugned action of the respondents since the opportunity to the petitioners to be elected or to elect the Chairperson, or to the people of Ward to elect their democratic representative has been snatched which is totally unconstitutional and in violation of the right to life granted under Article 21 of the Constitution of India. Learned counsel for the petitioners further argued that under Article 19 of the Constitution of India freedom to elect as well as freedom to be elected to the petitioners has been rendered nullity because of the impugned action of the respondents inasmuch as in the democratic form of governance, the right of electorate to choose its representative is the pinnacle of the freedom of expression and, therefore, the right of the electorate to choose its representative is part and parcel of Article 19 (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 6 member on the soonest possible occasion under Section 30 whereas such mandate is conspicuous by its absence in Section 65, therefore, the impugned action is liable to be quashed and set aside being discriminatory, hostile, arbitrary and devoid of any legal objective to achieve except for denuding constitutional and statutory rights of the petitioners and similarly situated persons. Learned counsel for the petitioners invited attention of the Court towards composition of the Municipal Board under under Article 243 of the Constitution of India and contended that Section 65 of the Act of 1959 provides that every Board shall have a Chairman and a Vice Chairman. In the said section, under sub-section (13), it is specifically provided that a vacancy in the office of the Chairman or a Vice Chairman occurring otherwise than by efflux of time shall be filled in accordance with the provisions of the fore-going sub-sections and the persons elected to fill up the vacancy shall hold office for the residue of the term for which the Chairman or Vice Chairman in whose place he is so elected would have held if the vacancy had not occurred; meaning thereby, a duty has been cast by the legislature to fill up the vacancy, if arose, during the tenure of a Chairman or Vice Chairman for the residue term of office. Further, inviting attention towards Section 30 of the Act of 7 1959, it is submitted by learned counsel for the petitioners that there is provision in the Act itself for filling up the casual vacancy. As per the petitioners, there is duty cast by the legislature to fill up the casual vacancy subject to the provisions of Section 31 at a by-election which shall be fixed to take place as soon as may be after the occurrence of the vacancy and shall be held as far as may be in the manner provided by order made under Section 29 for a general election; meaning thereby, it is the duty of the respondents to fill up the casual vacancy in time; but, as a matter of fact, the respondents were under obligation to fill up the vacancy of Ward Member of the vacant seat which fell vacant due to resignation/death of the Member; and, thereafter, to conduct the election of Chairman. But, admittedly, the petitioners' grievance is that the vacancy of the Ward Member is not filled in and, on the contrary, without filling up the vacancy of Ward Member, the respondents are going to fill the post of Chairman. It is vehemently contended by learned counsel for the petitioners that due to this action of the respondents, rights of the citizens of the respective Ward will be frustrated and they will not be able to get their vote cast or to contest the election of Chairman. Learned counsel for the petitioners while inviting 8 attention towards Article 243R of the Constitution of India submit that the said Article provides for the composition of the municipalities and clause (1) of the said Article specifically provides that, “Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the municipal area and for this purpose each municipal area shall be divided into territorial constituencies to be known as wards.”; meaning thereby, as per the constitutional provision, the vacant seat of the municipality is to be filled up first. Further, under Article 243ZA, it is provided that election to the municipality stipulating thereunder the superintendence, direction and control of the election to be vested in the State Election Commission enabling the State Legislature to enact with regard to all matters relating to election to the municipality. 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 9 with regard to right to vote. Likewise, specific provision has been made for filling up casual vacancy and further the mode of election; meaning thereby, the main crux of the argument of learned counsel for the petitioners is that the respondents are under obligation to hold the election of the vacant seat of Ward Member first and, thereafter, conduct election of the Chairman of the Municipal Board, therefore, the action of the respondents while conducting the election of the Chairman of the Municipal Board without filling up the vacant seat of the Ward Member is unconstitutional and illegal. 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. 10 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 11 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 non- adherence 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.” 12 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 13 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 14 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 15 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 16 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 17 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 18 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