Gujarat High Court
Lalitaben Hamirbhai Makwana vs The Election Officer And City Deputy ... on 19 January, 2024
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi, Rajendra M. Sareen
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C/SCA/7658/2022 JUDGMENT DATED: 19/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7658 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LALITABEN HAMIRBHAI MAKWANA
Versus
THE ELECTION OFFICER AND CITY DEPUTY COLLECTOR (WEST),
AHMEDABAD
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Appearance:
MR ROHAN LAVKUMAR for NANAVATI ASSOCIATES(1375) for the
Petitioner(s) No. 1
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 2
MR YN RAVANI(718) for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No.
1,10,11,12,13,14,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 19/01/2024
Page 1 of 9
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ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
1. By way of this petition, though stated to be under Articles
226 and 227 of the Constitution of India, an order dated 16.03.2022
passed by the Chief Judge, Small Causes Court, Ahmedabad below
Exh. 24 in Election Petition No. 5 of 2021, is challenged by the
petitioner, who is elected as a Councillor, whereby the learned
Judge ordered to issue witness summons to Palabhai Jivabhai
Parmar as mentioned in paragraph no.3(a) of application Exh. 24.
2. The petitioner as also respondent no.3 herein, are candidates
contesting election of Councilor from Ward no.6 Nava Vadaj of
Ahmedabad Municipal Corporation, which was conducted on
21.02.2021. The result thereof came to be declared on 23.02.2021,
wherein, the petitioner herein was declared elected as Coucillor of
Ward no.6, Nava Vadaj of AMC. Being aggrieved by the outcome of
election, respondent no.3 herein filed Election Petition no.5 of 2021
before the Small Causes Court, Ahmedabad under Section 16 of the
Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter
referred as 'the Act'). During pendency of the same, vide
application Exh - 24, respondent no.3, as election petitioner before
the Election Tribunal, applied for issuance of witness summons to
one Palabhai Jivabhai Parmar, who claimed to be the father-in-law
of the petitioner, as according to the case of election petitioner i.e.
respondent no.3 herein, the petitioner has suppressed her marital
status and filled the nomination form on oath, which is incorrect.
To prove the marital status of the petitioner herein, a request was
made to issue witness summons. The learned judge, after hearing
both the parties before it, vide impugned order, allowed the
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application Exh. 24 and directed the witness summons to be issued
to the person named in paragraph no.3(a) of the application Exh.
24. It is that very order, which is under challenge, before this
Court, by the petitioner.
3. Mr. Rohan Lavkumar for Nanavati Associates, learned
advocate for the petitioner vehemently submitted that for any
Election Petition filed under Section 16 of 'the Act', summary
inquiry is provided for, and therefore, it has to be conducted as
inquiry based on pleadings and production of documents only.
3.1 It is further submitted that the inquiry as provided
under Section 16 of 'the Act' is not a trial, and therefore, no
witnesses can be examined even on the request made by any of the
parties for the purpose of deciding the Election Petition by the
learned Election Tribunal.
3.2 In support of his aforesaid submission, Mr. Rohan
Lavkumar, learned advocate for the petitioner has relied on the
decision of the Madras High Court reported in 2000 (III) CTC 160
in the case of Aurobindo Ashram Trust represented by
Managing Trustee Mr. Harikant C Patel and another Vs.
Kamal Dora, more particularly, paragraph nos.9 and 10 thereof. It
is submitted that issuance of summons for examining witnesses is
not automatic but the Court is supposed to examine the bona fides
of the requests to issue witness summons. It is further submitted
that, based on the very same decision, respondent no.3 herein is
trying to irritate, harass the petitioner and malign her as it is her
case that she has never married but it was incumbent upon the
Court before issuing witness summons to ascertain bona fides of
respondent no.3 herein.
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3.3 Another decision in the case of Saifuneessa Vs Assain
N.K and others of the Kerala High Court reported in 2019 SCC
Online Ker 5904 is relied upon, more particularly, paragraph
no.12 thereof. It is submitted that Election Petition is not an action
at law or a suit in equity, and therefore, no witnesses can be
examined. There cannot be resort to the provisions of the Code of
Civil Procedure, 1908. Therefore, the order impugned passed by
the learned Tribunal is illegal. Therefore, he has submitted that the
impugned order passed by the learned Judge below Exh. 24, issuing
witness summons, be quashed and set aside and the petition be
allowed.
3.4 At the same time, Mr. Rohan Lavkumar had drawn
attention of this Court to the order dated 03.10.2022. It is
submitted that despite this Court directed respondent no.3 to
produce the affidavit, which was filed before the Election Tribunal
at Exh. 22/1, before this Court and a separate affidavit of that very
witness Palabhai Jivabhai was also directed to be filed stating that
petitioner is his daughter-in-law. Despite the order by this Court,
respondent no.3 produced affidavit at Exh. 22/1 of Palabhai
Jivabhai but no separate affidavit of him along with sufficient proof
about the so-called marriage solemnized with his son Rameshbhai
Palabhai came to be produced. Therefore, it is submitted that it is
nothing but an attempt to harass the petitioner, the witness
summons is sought to be issued by respondent no.3 herein, and
therefore, the impugned order is required to be quashed and set
aside with exemplary cost to be paid by respondent no.3 herein i.e.
the original election petitioner.
4. Mr. Y.N Ravani, learned advocate for respondent no.3,
submitted that in an order issuing witness summons on an
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application preferred by the election petitioner, the Election
Tribunal has exercised discretion for the purpose of conducting
inquiry before it, which cannot be interfered with, more
particularly, when it is a petition filed under Article 227 of the
Constitution of India before this Court. He has further submitted
that even if any inquiry is to be conducted in the Election Petition
under Section 16 of 'the Act', when election of a Councillor is
challenged, to prove that elected Councillor has filed false affidavit
along with her nomination paper, there has to be an evidence
before this Court i.e. oral and documentary. Under the
circumstances, the issuance of summons to witness for oral
evidence in respect of issue at large in the Election Petition,
nothing illegal is committed by the learned Judge, and therefore,
present petition is required to be rejected summarily with cost.
4.1 In support of his submissions, Mr. Ravani learned
advocate for respondent no.3 relied upon the decision in case of
Kailash Vs. Nanhku and others reported in (2005) 4 SCC 480,
more particularly, paragraph no.7 thereof, for a proposition that
Election Petition is a civil trial, and therefore, the provisions of the
Code of Civil Procedure, 1908, would apply to the trial under
Election Petition unless specifically barred by the special law i.e.
'the Act'. It is further submitted that so long as applicability of of
CPC is not barred specifically, broadly all the provisions of CPC
would be applicable for the purpose of the inquiries or trials, more
particularly, when an election petition is considered to be civil trial.
It is further submitted that though the aforesaid decision is
pertaining to Election Petition under the Representation of Peoples
Act,1951, nonetheless all Election Petitions where remedies are
provided for challenge to the elected persons of local self
government, it is to be treated as civil trial. Therefore, order
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issuing witness summons by the learned Judge cannot be found
fault with and therefore, it is prayed to reject the petition.
5. Having heard learned advocates appearing for the respective
parties and going through 'the Act' as well as the Code of Civil
Procedure, 1908 and the materials annexed with the petition, it
emerges that when the purpose for which witness is required to be
called is already mentioned in the application below Exh. 24, as
well as in in the affidavit of the witness, who is requested to be
examined also produced along with it, the purpose can be spelt out
from it.
5.1 It is pertinent to note here that the petitioner herein
vide Exh.27, filed reply to Exh. 24 objecting to issuance of witness
summons to Palabhai Jivabhai, but nowhere any dispute with
regard to the purpose for which he is being examined or her
marital status is disputed in writing by the petitioner herein.
Therefore, permitting the witness to be examined for the purpose
of false claim made in the nomination form with regard to the
marital status, when witness is to be examined, in absence of any
denial of the said status in reply to Application Exh.24 in writing,
no fault can be found with the impugned order. At the same time,
it is not the case of the petitioner that he is being examined as a
witness for the purpose of irritating or harassing the petitioner, as
orally submitted.
5.2 The procedure prescribed under Section 403 of 'the
Act' has not restricted the applicability of 'the Act' under which
witness summons is being issued to examine the witnesses named
therein. At the same time, it would be profitable to refer Section
418 of 'the Act', which reads as under:
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"418. Power to summon witnesses and compel production of
documents
(1) For the purpose of any inquiry or proceeding under this
Act (emphasis by us), the Judge may summon and enforce the
attendance of witnesses and compel them to give evidence
and compel the production of documents, by the same means
and , as far as is possible, in the same manner as is provided
in the case of a Court of Small Causes by or under the
relevant Small Cause Courts Act and in all matters relating to
any such inquiry or proceeding the Judge shall be guided
generally by the provisions of the said Act so far as the same
are applicable.
(2) If, in any such inquiry or proceeding, the person against
whom the complaint or application had been made fails to
appear, notwithstanding that he has been duly summoned
for this purpose, the Judge may hear and determine the case
in his absence.
(3) The costs of every such inquiry or proceeding as
determined by the Judge shall be payable by such parties and
in such proportions as the Judge shall direct and the amount
thereof shall, if necessary, be recoverable as if the same were
due under a decree of a Court of Small Causes constituted
under [the relevant Small Causes Courts Act];
Provided that, if such inquiry or proceeding relates to a
dispute regarding expenses declared to be improvement
expenses by or under any provisions of this Act, the amount
of the costs directed by the Judge to be paid by the owner or
occupier of the premises on respect of which or for the
benefit of which the improvement expenses were incurred
shall be a charge on such premises and may also be
recovered in the manner prescribed in Section 442. "
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6.4 Looking to the aforesaid provisions, it is very clear that
for the purpose of any inquiry or proceedings under 'the Act', the
Judge may summon and enforce the attendance of witnesses and
compel them to give evidence as also production of documents.
Therefore, it is very clear that even if it is Election Petition under
Section 16 of 'the Act', it is to be considered as an inquiry under
'the Act', and therefore, learned judge conducting an inquiry is
empowered to issue witness summons as provided under Section
418 of 'the Act'. Though section 418 of 'the Act' falls within Part VI
titled as 'proceedings before the Judge'; falls under Chapter XXVI,
nonetheless, it applies to all the inquiries and proceedings under
'the Act'.
7. Reliance placed on the decision in the case of Shri
Aurobindo (Supra) is misplaced as purpose for which witness
summons is proposed to be issued is already revealed in the
application Exh. 24, as also affidavit of the witness annexed with
the same and copy of which is served to the petitioner herein, and
therefore, it cannot be said that witness is being examined with a
view to irritate or harass the petitioner. At any rate the said
decision cannot be applied to the facts of the present case, as it is
determined in that very context.
7.1 The decision in the case of Saifuneessa (Supra) relied
upon by the learned advocate for the petitioner, to submit that the
Election Petition is not an action at law or issue in equity but as
held herein above, the Election Petition is a civil trial and more
particularly, when provisions under which the Election Petition is
filed also provides for power to issue witness summons by the
learned judge.
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8. The aforesaid decisions are not applicable to the facts of the
present case. Therefore, we find no substance in the submission
that no witness summons could have been issued by the learned
Judge as it is an inquiry and not trial and no provisions of Code of
Civil Procedure, 1908 would apply. Therefore the petition merits no
consideration, that too, while exercising jurisdiction under Article
227 of the Constitution of India, therefore, the present petition is
hereby rejected. Notice is discharged. Interim relief granted
earlier, if any, shall stands vacated.
(UMESH A. TRIVEDI, J)
(RAJENDRA M. SAREEN,J)
Radhika
