1 WP.7663/2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7663 OF 2010 Arjun Pandharinath Avaghade ...Petitioner. V/s. Shivaji Pandurang Lokhande & Ors. ..Respondents. ----- Mr. R.V. Govilkar, Counsel for the Petitioner. Mr. Deepak C. Natu i/b M/s N. Deepak & Co., for Respondent No.1. Mr. R.M. Patne, A.G.P. For Respondent No.2. ------ CORAM : A.S. OKA, J. DATED : 6 th OCTOBER, 2010. P.C: 1] Heard the learned counsel for the petitioner and learned counsel for the first respondent. By this writ petition order under Article 227 of the Constitution of India, the challenge is to an order of the Civil Judge (Senior Division) at Pune by which issue of jurisdiction to entertain an election dispute under section 15 of the Bombay Village Panchayat Act, 1958 has been decided. 2 WP.7663/2010 2] By consent, taken up for final disposal at the admission stage. 3] The first respondent filed an election dispute under section 15 of the Bombay Village Panchayats Act, 1958 [hereinafter referred to as ‘the said Act of 1958’] for challenging the election of the petitioner. The election dispute was filed in the Court of the Civil Judge (Senior Division), Pune. 4] An application was made by the petitioner for framing a preliminary issue of jurisdiction of the Court of the learned Civil Judge (Senior Division), Pune to entertain and try the election dispute. It was contended that the election dispute was maintainable in the Court of the Civil Judge Junior Division, Khed, District-Pune. On the basis of the said application, a preliminary issue of jurisdiction was framed by the learned Civil Judge (Senior Division). By the order impugned dated 21st April, 2010, the learned Civil Judge (Senior Division) held that the election dispute was maintainable in his Court. The learned Judge observed that the State Election Commission, as also Election Commissioner and the Returning Officer were impleaded as parties to the election dispute and it cannot be said that the dispute can be properly adjudicated without the State Election Commissioner or the 3 WP.7663/2010 Returning Officer being made parties to the election dispute. The learned Judge expressed a prima facie opinion that the Executive Magistrate (Tahasildar), the Returning Officer, and the State Election Commissioner were necessary parties to the election dispute and as government officers were parties to the election dispute, the Court of the Civil Judge Junior Division has no jurisdiction. 5] The learned Judge has held that there was absence of non- obstante clause in section 15 of the said Act of 1958, and therefore under provisions of section 32 of the Bombay Civil Courts Act, 1869 [hereinafter referred to as ‘the said Act of 1869] there was no specific bar against the Civil Judge (Senior Division) entertaining such petition. 6] The learned counsel for the petitioner relied upon section 15 of the said Act of 1958 and submitted that wherever there is a Court of the Civil Judge Junior Division, the said Court has exclusive jurisdiction to entertain application contemplated by the section 15. He submitted that only when there is no such Judge, then the Civil Judge (Senior Division) gets jurisdiction to entertain the election dispute. He submitted that admittedly in the present case, the Court of 4 WP.7663/2010 the Civil Judge Junior Division was available. He submitted that the fact that certain government officers are parties to the election dispute is totally irrelevant. 7] The learned counsel for the first respondent submitted that there is absence of non obstante clause in section 15 of the said Act of 1958. Inviting attention of the Court to various sections of the said Acts of 1958, he submitted that the said Act does not have overriding effect over the Bombay Civil Courts Act, 1869. He invited attention of the Court to various provisions of the said Act of 1958. He submitted that as the State Election Commission and other two government officers are necessary parties to the election petition, the Court of Civil Judge Junior Division has no jurisdiction to entertain the election petition in view of the bar created by sub section 1 of section 32 of the said Act of 1869. He relied upon a decision of the Full Bench of this Court in the case of The Secretary of the State for India Vs. Narsibhai Dadabhai Patel in Civil Extraordinary Application No.367 of 1922 decided on 23.7.1923 in support of his submission. He also relied upon another decision of the Apex Court in the case of Usmanbhai Dawoodbhai Memon and Others Vs. State of Gujrat [AIR 1988 Supreme Court page 922]. He further submitted that in view of the said 5 WP.7663/2010 decisions, the provisions of the said Act of 1869 must prevail. He pointed out that in view of the section 32 of the said Act of 1869, the Court of Civil Judge (Senior Division) has jurisdiction to entertain election dispute. He, therefore, submitted that the learned Judge has taken correct view and no interference is called for. 8] I have given careful consideration to the submissions. The sub section 1 of section 15 of the Act of 1958 reads thus: “[15](1)-If the validity of any election of a member of a Panchayat is brought in question by ( any candidate at such election or by) any persons qualified to vote at the election to which such question refers,(such candidate or person) may, at any time within fifteen days after the date of declaration of the result of the election, apply to the Civil Judge (Junior Division), and if there be no Civil Judge (Junior Division) then to the Civil Judge (Senior Division) (hereinafter in each in case, referred to as “the Judge”)having ordinary jurisdiction in the area within which the election has been or should have been held for the of such question.” The validity of the election of a member of Village Panchayat can be challenged only in accordance with the provisions of the said Act of 1958. The only mode laid down by the said Act is by 6 WP.7663/2010 making an application contemplated by sub section 1 of section 15 of the said Act of 1958. The application made under sub-section 1 of section 15 is not a Civil Suit but it is in the nature of an election dispute in which the Election Tribunal can go into the question of validity of the election of any new member of Village Panchayat. Under sub-section 1 of section 15 of the said Act, the application is maintainable before the Court of the Civil Judge (Junior Division) and only if there is no such the Civil Judge Junior Division, then to the Court of the Civil Judge (Senior Division) having ordinary civil jurisdiction in the area within which the election has been held. In the present case, there is no dispute that there is a Court of the Civil Judge (Junior Division) at Khed having ordinary jurisdiction over the area within which the election has been held. Thus, on the clear reading of the sub-section 1, it is the Court of the Civil Judge (Junior Division), Khed which has exclusive jurisdiction to entertain the application challenging validity of the election. Under section 15(1), the jurisdiction does not depend on the parties to the application, but it only depends on the availability of the Court of the Civil Judge (Junior Division) for the area. 7 WP.7663/2010 9] The Civil Judges are appointed under section 22 of the said Act 1869. Section 24 of the said Act of 1869 creates two classes of Civil Judges viz. Senior Division and Junior Division. In the present case, the Courts named under sub section 1 of section 15 do not exercise the jurisdiction of a Civil Court under the provision of the said Act of 1869. The Courts named under sub section 1 of section 15 are in fact Election Tribunals constituted to decide the election dispute under the said Act. The sub-section 1 of section 32 of the Act of 1869 provides that no Court other than a Court of Civil Judge (Senior Division) can entertain a suit in which the government or any officer of the government is a party. An application contemplated at sub- section 1 of section 15 of the said Act of 1869 is not a suit. Therefore, sub section 1 of section 32 of the said Act of 1869 has no application to an election dispute under section 16(1) of the said Act of 1958. 10] Irrespective of the parties to the application contemplated by sub-section 1 of section 15, the exclusive jurisdiction has been conferred on the Civil Judge (Junior Division) having ordinary jurisdiction in the area in which the election has been held. The jurisdiction of the Civil Judge Junior Division to entertain an application under sub section 1 of section 15 does not depend on the parties to the election dispute. 8 WP.7663/2010 11] The absence of non obstante clause in sub-section 1 of section 15 of the said Act of 1958, or failure to give overriding effect to the provisions of the said Act of 1958 is totally irrelevant. As stated earlier the section 32 of the Act of 1869 applies only to the suits. The power to decide an election dispute under sub-section 1 of section 15 can be exercised exclusively by the Court which is named in the said sub section which is the Court of the Civil Judge Junior Division, and only in absence of such a Court, the Civil Judge (Senior Division) gets jurisdiction. 12] The learned counsel for the first respondent has relied upon the decision of the full Bench in the case of The Secretary of State for India’(Supra). He placed reliance upon what is held by the full Bench in paragraphs 12 and 13 thereof. It must be noted that the full Bench was dealing with a Civil Suit brought by the rate-payers and voters. The matter before the Full Bench arose out of the order returning the plaint and therefore, said decision will have no application in the present case. The reliance placed by the learned counsel for the first respondent in the case of Usmanbhai Dawoodbhai Memon(Supra) is completely misplaced. In in the present case, the statute confers exclusive jurisdiction on the Court of the Civil Judge (Junior Division) at Khed to entertain election dispute. 9 WP.7663/2010 13] In the circumstances, the Court of the Civil Judge Senior Division at Pune had no jurisdiction to entertain the election petition filed by the first respondent. 14] Thus, the election petition was filed by the first respondent in the Court having no jurisdiction. 15] The provisions of Rule 10 of Order VII of the Code of Civil Procedure, 1908 are not applicable to an application under sub- section 1 of section 15 of the said Act of 1958. Moreover, a period of limitation of 15 days has been provided for filing an application. Therefore, the order of returning the election petition cannot be passed in the present case. 16] Hence, I pass following order:- i] The impugned order is quashed and set aside and it is held that the Election Petition No.2 of 2010 was not maintainable in the Court of the Civil Judge (Senior Division) at Pune; ii] Accordingly, the Election Petition No.2 of 2010 stands dismissed having filed in the Court having no jurisdiction to entertain and try the same. 10 WP.7663/2010 17] The learned counsel appearing for the first respondent applies for stay of this order. In view of the fact that the said Election Petition stands dismissed, stay cannot be granted. JUDGE