Diddi Kumaraswamy vs Bairi Shyam Sunder
2023 Latest Caselaw 3423 Tel

               THE HON'BLE Dr. JUSTICE G. RADHA RANI

                CIVIL REVISION PETITION No.2293 of 2023

O R D E R:

This Civil Revision Petition is filed by the petitioner-respondent

No.4 aggrieved by the order dated 22.06.2023 passed in SR.No.1571 of 2023 in

Election O.P.No.1 of 2022 on the file of the Court of the Principal District Judge at

Warangal.

2. The respondent No.1 filed an Election O.P. under Section 3 of the

Telangana Municipalities Act, 2019 seeking recounting of the votes in the open

Court in the presence of parties and their counsel, to declare him as elected

Corporator of Ward No.34 of Warangal District Corporation, Warangal and to

declare the election of respondent No.4 as null and void.

3. In the Election Petition, the District Collector, Warangal Urban

District was shown as respondent No.1, the Commissioner, Greater Warangal

Municipal Corporation, Warangal District was shown as respondent No.2, the

Returning Officer, Elections to G.W.M.C. as respondent No.3 and the candidate,

who was declared elected as Corporator of Ward No.34 of Warangal Corporation

as respondent No.4.

4. An enquiry was conducted and during the course of enquiry, the

petitioner's side evidence was closed. The respondent No.4 (the petitioner herein) CRP_2293_2023 Dr.GRR, J

filed his affidavit as RW.1. At that stage, the respondent No.4 filed a petition

under Order I, Rule 10 read with Section 151 of C.P.C. to implead eight other

candidates who had contested the election as respondents 5 to 12 in the main

Election O.P.. The said I.A. was numbered initially and the respondent No.4 had

also filed his counter in the said I.A., but subsequently vide docket order dated

07.06.2023, the learned Principal District Judge, Warangal noted that:

"Petitioner present. Counsel for the petitioner and respondent present. The number given to the application filed by the respondent No.4 under Order I Rule 10 is deleted as entertainment of application itself is proper or not and hearing of the respondent No.1 is just and necessary before ordering of the notice to the proposed parties. As the respondent No.1 requested to permit to file counter at this stage he is permitted by this Court, as the case is at the stage of cross-examination of RW.1 by the petitioner counsel. Accordingly, this Court has received the counter filed by the respondent No.1 and SR. No.(1571), I.A.No.1 of 2023 is pending for hearing the petitioner and R1 therein. Hence, call on 09.06.2023."

5. The Principal District Judge, Warangal dismissed the petition vide

the impugned order in SR.No.1571 of 2023 in Election O.P.No.1 of 2023 dated

22.06.2023. Challenging the same, the respondent No.4 preferred this revision

contending that the order of the court below was a non-speaking order. The Court

below had not followed the Telangana Municipalities (Election Petitions) Rules

2020. The lower Court ought to have given the I.A. number to the petition filed by CRP_2293_2023 Dr.GRR, J

the petitioners who made the application, but heard the petition at SR stage and

dismissed the application without going through the Act and Rules. The order of

the lower Court was contrary to Rules 5(a) and 7 of the Telangana Municipalities

(Election Petitions) Rules, 2020. Once the petition was filed by respondent No.1

to declare the election as void, Rule 5 is applicable along with Rule 7 and entire

contesting candidates were necessary parties to the proceedings. The respondent

No.1-petitioner ought to have filed this petition, but he intentionally avoided to

implead all the necessary parties to the petition as per the above Rules. The

application filed by the petitioner-respondent No.4 rejected by the Court was liable

to be set aside. Dismissing the application at SR stage after filing of counter by

RW.1 was against law and prayed to set aside the impugned order.

6. Heard the learned counsel for the petitioner and the learned counsel

for the respondent.

7. Learned counsel for the petitioner contended that the procedure

followed by the Court was not in accordance with law. Initially, I.A. was

numbered on 05.06.2023 and notices were ordered. Subsequently, on 07.06.2023,

the I.A. number was revoked and order was passed in SR No.1571 of 2023. The

said application was dismissed at the stage of SR. As per Rule 5(a) of the

Telangana Municipalities (Election Petitions) Rules, 2020, where the petitioner

claims a declaration under Rule 7, all the contesting candidates shall be added as CRP_2293_2023 Dr.GRR, J

respondents to the petition. Filing of the petition by the respondent No.1-petitioner

without complying Rules 5 and 7 of the Telangana Municipalities (Election

Petitions) Rules, 2020 was illegal and void and relied upon the judgment of High

Court of Patna in Badri Narain Singh and Ors. Vs. Kamdeo Prasad Singh and

Anr. 1 where the petition was dismissed as bad for mis-joinder of respondents 8

and 9.

8. Learned counsel for the respondent No.1-petitioner in the main

Election O.P. on the other hand contended that the trial court postponed the issue

of looking into the effect of non-joinder of parties, but not dismissed it altogether.

Even as per the language of Rule 5, it would state that the petitioner may add as

respondents to his petition all the contesting candidates, where the petitioner

claims a declaration under Rule 7. Thus, discretion was vested with the petitioner

and relied upon the judgment of the High Court of Delhi in Rajender Mohan

Rana and Ors. Vs. Prem Prakash Chaudhary & Ors. 2

9. In the light of the contentions raised by both the counsel, the issue

in the present case need to be looked it. The procedure applied by the trial Court in

numbering the petition initially and later revoking the same and passing orders at

SR stage is to be deprecated. If the Court intended to pass orders at the SR stage,

there is no need to issue notices to the respondents and no need to receive the

AIR 1961 Pat 41

184 (2011) DLT 454 CRP_2293_2023 Dr.GRR, J

counters. The Court could hear the petitioner on the maintainability of the petition

and only if it satisfies itself, it could order for notices either to the existing

respondents or to the proposed respondents. The docket order passed by the Court

dated 07.06.2023 itself would disclose that the number given to the application was

revoked as it intended to hear on the maintainability of the application. The order

of the Court also would disclose that it permitted the respondent No.1 to file his

counter at that stage and after receiving the same, heard on the maintainability of

the application and passed orders on 22.06.2023.

10. Though the petitioner contended that all the candidates who

contested the election were proper and necessary parties, the same was dismissed

by the trial Court on the ground that the petition was filed at a belated stage after

commencement of enquiry and that too after filing the chief affidavit of RW.1 on

behalf of respondents 1 to 3. The reason given by the Court was that if the petition

was numbered, there would be delay in disposal of the main Election O.P.. The

trial Court also observed that as the respondent No.1 was opposing the petition, not

entertaining the petition would not cause any prejudice to the case of the petitioner,

the effect of non-joinder of proper and necessary parties would be looked into at

the time of judgment.

11. The Court below failed to look into the provisions of the Telangana

Municipalities (Election Petitions) Rules, 2020. As per Rule 3, no election petition CRP_2293_2023 Dr.GRR, J

held under the Act shall be called in question except by an election petition

presented in accordance with the Rules to an Election Tribunal as referred in

Section 233 of the Act and as further referred in Rule 4 by any person or elector

against the candidate who had been declared as duly elected.

12. Rule 5 of the Telangana Municipalities (Election Petitions) Rules,

2020 specifies the parties to the petition as under:

"A petitioner may add as respondents to his petition:

a) where the petitioner claims a declaration under Rule 7, all the contesting candidates; and

b) any other candidate(s) against whom allegations of any corrupt or illegal practices are made."

13. Rule 7 of the Telangana Municipalities (Election Petitions) Rules,

2020 specifies the reliefs that may be claimed by the petitioner as under:

"A petitioner may claim any of the declarations:

a) that the election of the returned candidate is void;

b) that the election of the returned candidate is void and that he himself or any other candidate has been duly elected, and in such case he shall add as respondents to his petition all other candidates who were nominated for the election but had not withdrawn before the poll; and

c) that the election as whole is void."

CRP_2293_2023 Dr.GRR, J

14. The contention of the learned counsel for the respondent No.1-

petitioner in the main O.P. was that the word 'may' used in Rule 5 confers a

discretionary power and as such, it is within the discretion of the petitioner to add

the respondents whom he intended to implead as parties and relied upon the

judgment of the High Court of Delhi in Rajender Mohan Rana & Ors. Vs. Prem

Prakash Chaudhary & Ors. (2 supra) wherein it was held that:

"10. To reiterate the words "may" and "shall" are distinct in meaning. While one confers a discretionary power, the latter one pelts out mandatory directions. These words are not synonymous but may be used interchangeably if the context requires such interpretation. The Supreme Court in Mohan Singh v. International Airport Authority of India (1997) 9 SCC 132 held as below:

"26. Thus, this Court, keeping in view the objects of the Act, had considered whether the language in a particular section, clause or sentence is directory or mandatory. The word „shall‟, though prima facie gives impression of being of mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. In that behalf, the court is required to keep in view the impact on the profession, necessity of its compliance; whether the statute, if it is avoided, provides for any contingency for non-compliance; if the word "shall" is construed as having mandatory character, the mischief that would ensue by such construction; whether the public convenience would be subserved or CRP_2293_2023 Dr.GRR, J

public inconvenience or the general inconvenience that may ensue if it is held mandatory and all other relevant circumstances are required to be taken into consideration in construing whether the provision would be mandatory or directory. If an object of the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public without much furthering the object of enactment, the same should be construed as directory but all the same, it would not mean that the language used would be ignored altogether. Effect must be given to all the provisions harmoniously to suppress public mischief and to promote public justice.""

15. Though the word 'may' confers a discretionary power that by itself is

not decisive and having regard to the context and consequences, the Court could

come to a conclusion that the part of the statute using 'shall' is directory. In the

present case, though Rule 5 uses the word that the petitioner may add as

respondents to his petition, but it specifies immediately in clause (a) that - where

the petitioner claims a declaration under Rule 7, all the contesting candidates shall

be added as respondents.

16. In Rule 7, it was specified that if the petitioner was claiming not

only the election of the returning candidate as void, but he himself or any other

candidate as duly elected, in such case, he shall add all other candidates who were CRP_2293_2023 Dr.GRR, J

nominated for the election, as parties to the petition.

17. In the present case, the respondent No.1-petitioner had not only

sought to declare the election of respondent No.4 (the present petitioner) as null

and void but also to declare him as elected Corporator of Ward No.34 of Warangal

Municipal Corporation, Warangal and to order for recounting of votes in the open

Court in the presence of parties and their counsel. In Rule 7(b), the word shall is

used making it mandatory to add all other candidates who were nominated for the

election. As such, having regard to the context, subject matter and the object of

the Telangana Municipalities (Election Petition) Rules, 2020 and considering the

judgment of the Hon'ble Apex Court in Dinesh Chandra Pandey Vs. High Court

of Madhya Pradesh 3 wherein it was held that:

"The Courts have taken a view that where expression `shall' has been used it would not necessarily mean that it is mandatory. It will always depend upon the facts of a given case, the conjunctive reading of the relevant provisions along with other provisions of the Rules, the purpose sought to be achieved and the object behind implementation of such a provision. This Court in the case of Sarla Goel v. Kishan Chand [(2009) 7 SCC 658], took the view that where the word `may' shall be read as `shall' would depend upon the intention of the legislature and it is not to be taken that once the word `may' is used, it per se would be directory. In other words, it is not merely the use of a particular expression that would render a provision directory or mandatory. It would have to be interpreted in light of the settled principles, and

(2010) 11 SCC 500 CRP_2293_2023 Dr.GRR, J

while ensuring that intent of the Rule is not frustrated."

18. The Hon'ble Apex Court in Mohan Singh Vs. International

Airport Authority of India 4 also held that:

"Thus, this Court, keeping in view the objects of the Act, had considered whether the language in a particular section, clause or sentence is directory or mandatory. The word "shall", though prima facie gives impression of being mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. In that behalf, the Court is required to keep in view the impact on the profession, necessity of its compliance; whether the statute, if it is avoided, provided for any contingency for non-compliance; if the word "shall" is construed as having mandatory character, the mischief that would ensue by such construction; whether the public convenience would be subserved or public inconvenience or the general inconvenience that may ensue if it is held mandatory and all other relevant circumstances are required to be taken into consideration in construing whether the provision would be mandatory or directory. If an object to the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public without much furthering the object of enactment, the same should be construed as directory but all the same, it would not mean that the language used would be ignored altogether. Effect must be given to

(1997) 9 SCC 132 CRP_2293_2023 Dr.GRR, J

all the provisions harmoniously to suppress public mischief and to promote public justice."

19. The scheme of the Act would disclose that a duty is cast upon the

petitioner to implead all the candidates who were nominated for election, as parties

to his petition, when he was seeking the election of the returned candidate as void

and seeking himself as a duly elected candidate. Though the petitioner failed to

implead all the necessary candidates as parties to the petition, it was the respondent

No.4 (petitioner herein), who filed this application to implead all the necessary

candidates as parties to the petition. Failure to implead all the proper and

necessary parties would entail in dismissal of main Election O.P. itself. Thus, it

was in the benefit of respondent No.1 (petitioner) himself to implead all the

necessary parties to the petition. The Court ought not to have dismissed the said

petition on the ground of delay in disposing the matter without considering

whether they were proper or necessary parties to the petition. As such, it is

considered fit to set aside the order passed by the trial Court.

20. In the result, Civil Revision Petition is allowed setting aside the

order of the Election Tribunal in S.R.No.1571 of 2023 in Election O.P.No.1 of

2022 in dismissing the petition at SR stage. The trial court is directed to number

the petition if the same is in accordance with law and to issue notices to all the CRP_2293_2023 Dr.GRR, J

proposed parties and to implead them as parties to the Election O.P., in the interest

of the respondent No.1-petitioner himself.

Miscellaneous petitions, if any pending shall stand closed.

_____________________ Dr. G. RADHA RANI, J October 31, 2023 ss