{"id":27188,"date":"1966-08-10T00:00:00","date_gmt":"1966-08-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jagannath-pundlik-and-ors-vs-sukhdeo-onkar-wankhede-and-ors-on-10-august-1966"},"modified":"2016-02-03T16:34:55","modified_gmt":"2016-02-03T11:04:55","slug":"jagannath-pundlik-and-ors-vs-sukhdeo-onkar-wankhede-and-ors-on-10-august-1966","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jagannath-pundlik-and-ors-vs-sukhdeo-onkar-wankhede-and-ors-on-10-august-1966","title":{"rendered":"Jagannath Pundlik And Ors. vs Sukhdeo Onkar Wankhede And Ors. on 10 August, 1966"},"content":{"rendered":"<div class=\"docsource_main\">Bombay High Court<\/div>\n<div class=\"doc_title\">Jagannath Pundlik And Ors. vs Sukhdeo Onkar Wankhede And Ors. on 10 August, 1966<\/div>\n<div class=\"doc_citations\">Equivalent citations: AIR 1967 Bom 317, (1967) 69 BOMLR 300<\/div>\n<div class=\"doc_author\">Author: Patel<\/div>\n<div class=\"doc_bench\">Bench: Patel, Deshmukh<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p> Patel, J. <\/p>\n<p> (1) This petition demonstrates  the manner in which  some  of  the Panchayats are  working  under the Panchayats  Act.\n<\/p>\n<p>  (2)  The  dispute  between  the parties  arises   out   of  an  election  to  the  village   Panchayat  of  wadshingi,  taluq Jalgaon,  which  took  place  on May  25, 1966.  The  result of  the   election  were  declared on  the next  day.  At  this  election petitioners   1  to 4  and  respondents  1  to 5  were  elected.  The  meeting  for  the election to  the Sarpanch  of  this Panchayat was fixed   originally  for July  5,  1966,  and  then  adjourned  to July  18,  1966.  In  the meantime,  respondents  6  and 7  filed  two  election petitions  against  petitioners  1  and  2  on June 10, 1966.  Respondent  No.  1  was  the   Sarpanch  elected   to  the prior  Panchayat.  He  then  made  an application  under section  16  of  the Bombay  Village  Panchayats  Act  1958,  to  the Collector  for  disqualifying   the petitioners  1  and  2  on  the  ground  that  they  were disqualified for   being  elected   as members  of  the  Panchayat  because  petitioner  no.  1  was below   the  age  of  25 and  petitioner  no.  2  was   below   the age  of  21  years.  The  Collector  rejected  this application on  July  8,  1966.  Prior  to  this,  before the  first  date  for  election  of  the  Sarpanch,  respondent  no 1  had made  an  application  to  the Collector  for postponing   the  election on  the  ground  that  an  election  petition  was pending.  The Collector  rejected  this application.  Thereafter,  respondents  6  and  7  presented  an  application  for  an interm  injunction  to   the  Civil  Judge  before  whom  the  election  petition  was pending,  praying  that  petitioners  1  and  2  be  restrained   by  an injunction  from  voting  at  the  ensuing  meeting  for  election  of  the Sarapanch,  adjourned  to July  18,  1966.  The  application  was made on  July  14,  1966  and  the  intrim  injunction was  granted  by  the learned  Judge  on  July  15,  1966.  Surprisingly  enough,  this injunction  was not   served right  until  one hour  before  the meeting  and  the   petitioners  were effectively  prevented  from  voting   at  the election.  The petitioners   seek  to challenge  the  order of  the learned  Civil  Judge &amp;   further  consequential  order  to quash  the election  of  respondent  No,  1  as Sarpanch  and  of respondent  no.  3  as Upasarpanch   of  the  Village Panchayat .  It  appears  that  the  meeting which  was scheduled  to take  place on  July  18,  1966,  had to  be  adjourned  to July  19,   1966.  Though  the injunction  related  to  the meeting  of  July  18,  petitioners  1  and  2  were not  allowed  to vote  at  the  meeting   which  actually  took  place  on  July  19,  1966,  by  the presiding  officer.\n<\/p>\n<p>  (3)  Mr.  Manohar  contends  that  the Civil  Judge  acting   under the provisions  of S.  15  of  the  said  Act  acts  as  a persona   designata  and  therefore  he  has  no power  to issue  an interm  injunction restraining  any  of  the  elected members  from  voting  at  the election of  the  Sarpanch.  It  has been   held  that  the Civil Judge  acting   under Section  15  is not  a Court  but merely  a persona  designata.  It   is not  necessary,  however,  to   decide  whether  or not  he has  got  all  the powers  of  a Civil  Court  while   holding  an  enquiry  and  whether  the powers  of  granting   interim  injunction  are powers  which  are  exercisable  during   the  enquiry  by  him.  For  the  purposes   of  this matter  we will assume  that  the  Civil Judge   has  by  reason   of  section 15 (2)  all  the powers  of  a  Civil  Court.\n<\/p>\n<p>  (4)  A  Civil  Court can  grant injunction only  under Order  39, Rules   1 and  2.  Evidently  rule  1 has  no application.  Rule  2   applies  only if  conditions  thereof  are  satisfied.\n<\/p>\n<p> The  rule  2  so  far  as  relevant  reads;\n<\/p>\n<p>   &#8220;In  any  suit  (1)  for  restraining  the defendant  from  committing  a  breach  of  contract  or  (2) other injury   of  any  kind .. .. .. apply  to  the Court  for  a  temporary  injunction  to restrain  the defendant  from  committing  the breach  of contract  or injury  complained  of.&#8221;\n<\/p>\n<p> We may  assume  that  though  election  petition  is not   a suit,  it may  even   be treated  as suit.  The  first  party  cannot  apply  for  there is no   question  of  a contract.  In  order  to bring  the   case  within   the second   part  the  applicant  must  show  some  legal  injury  of  some  kind.\n<\/p>\n<p>  (5)  In  order  to prove legal  injury  the  applicant  must  establish  that  he  has  a legal  right  to  do  something  and  the opponent  prevents   him  from  the exercise  of  such  right.  Unless  a  right  is  alleged  and\/or   shown  to  exist  prima facie,  there  can  be no question of  any  breach  of  that right.  The question  then  is    whether  the applicant  has  a right  to  do  that  what  he  wants  to prevent   the  defendant  from   doing.\n<\/p>\n<p>  (6)  Respondent  no.  6  applied   under section  15 of  the Act  to have  the election  of  the petitioners  set  aside   from  ward   3  from  where  petitioners   2  and  3  were  returned,  and  respondent  7  applied  to  set  aside  the election  of petitioner 1  and  respondent no  5  from  ward  4.  Respondent  No.  6  was  a  voter  while  respondent  no. 7 was a  candidate  at   the   election.  Under  the Act  what  is  the  right  that  each  of  them  possesses?  Neither  one  nor  the other   is  entitled  to act  as member  of  the Panchayat or  vote  at its  meeting.  In  fact,   until  election of petitioners   1 and   5  is  set aside,  and  he is  declared  elected  he  would  have no  right  in  respect  of  which injury  is  threatened  to him.  If  he  has no  right   there  can  be no injury  to  him  at  all.  There is  no  explanation  as  how  the  legitimate  exercise  of his  right   by  petitioners  and  respondent  no. 5  would cause  the applicants  any  injury.\n<\/p>\n<p>  (7)  Apart  from  this,  it  is  impossible  under  the provisions  of  the above  Act  to  countenance  the  above  contention  that  elected  representatives  of   the  people  can  be prevented. from  exercising   their  right  of  the  voting  at  a meeting  of  the Panchayat  during  the  pendency  of   an  election petition under Section 15 of  the Act.  In  this  connection   we must  refer to  section  15 (5) (a),  Section 28 and  Section 44 (2), S. 15 (5) (a)  requires  the  Court  to  set  aside  the  election  of  a  candidate  if he   has  committed   corrupt  practice  after  the  enquiry.  When  there is  any  other  dispute,  the judge   has  to make  scrutiny  of  the  votes  and  then  declare  the candidate  with  the largest   vote  duly  elected.  Section  28  prescribes   the  terms  of  the  office  of  the members  elected  to  the Panchayat.  It  provides   that  the  term  shall  be deemed  to commence  on  the date  of  the first  meeting  of  the Panchayat which  shall  be  held  on  a  day  to  be  fixed  by  the Collector  within four  weeks of  the date on  which  names of  elected members  are published under S. 10.  Section  44 (2)  provides  that  proceeding  of  the Panchayat  shall   be  valid notwithstanding   it  is  discovered  subsequently  that  some  person  who  was not  entitled  to  do  so,  sat or voted  or  otherwise  took  part  in  the proceedings.\n<\/p>\n<p>  (8)  The  scheme  of  the Panchayats  Act  as  of  such  similar Acts is  that    the person  who  is  elected  to  the office  continues  to  act in the office until  his  election  is  set aside  by  a   tribunal  entitled  to  do  so.  Section 16  supports   the  above   conclusion.  It  provides  for  cases  where  a person  who is elected  but  who  was   disqualified  or  who  incurs   disqualification  under Section 14.  Section  16 (2)  provides  that  an  elected  member  shall not   be  disqualified  from   voting   unless  the Collector   decides  the dispute.  Under  the Act  a person  who  is  declared  elected  has statutory  rights   to  attend  the meetings  of  the Panchayat  and  vote at  its  meetings.  The  Court  cannot in  any  manner  touch   his  statutory  rights  until  his  election is   set  aside  or   some one else  is  declared  elected in his place.  The reason  for   this  is  obvious.  When  an  elected member   exercises  his right  of  voting  he  does  not  exercise  it  for  himself,  but  as  representative  of  the voters.  Legitimate  exercise  of his right   as  a member  by him  cannot  be  regarded  as  any matter affecting respondent  no.  7.  In  England  it  seems  no injunction  so  far  has   ever  been  granted  preventing  an  elected member  from  exercising  his  rights   during  the pendency  of  an  election petition  against  him.\n<\/p>\n<p>  (9)  Mr.  Manohar  is  right   when  he  contends  that  the   ground   that  the  petitioners  1  and  2 had not   completed  21 years of  age  and  therefore   were not   qualifies  either  to  vote  or  to  be elected  as members  cannot   be  taken  in  an  election petition under  S.  15,  inasmuch as  the  entry   in  the list of  voters   is  made  conclusive  by  section  13  sub-section (3) of  the Act.  In  this  contention  he is supported   by  the  decision  of  a  Bench  of  this  Court in Civil  Revn.  Appln.  No.  25  of  1961.  D\/-30-9-1964 (Bom) in  a  case which  arose   under   the C. P. and  Berar  Municipalities   Act,  sections  20 A, 12 (3)  and 15  of  which  are  similarly   worded   as the   sections  in  the present  case.  To  the  same   effect  is  the  judgment  by   us in  Dhondba v. Civil Judge, .  It  is  clear,  therefore  that  the allegation  that  the  two  petitioners  were disqualified   because  of their  age  was  no open  to  be made for setting  aside  the  election of  the petitioners   1  and  2  under Section  15.  Thus on merits  also  the  respondent  Nos.  6  and  7  had  no case.\n<\/p>\n<p>  (10)  Mr.  Kulkarni  very   strongly   relied upon  Bhimanna  Balappa  v.  Ramchandra gopal  Spl. Civil Appln.  No. 126  of 1965, D\/-15-2-1965, reported  in  1965 Mah  LJ (Notes) 79,  where  a Bench  of  this Court   observed  that  interim  injunction  ought  not  to  be issued  unless  a prima  facie  case  is  found.  Mr.  Kulkarni  wants  us  to  import   into  this  decision  a  further   decision  that  the Court  rules  that  under  the  Act injunction  can  be granted  preventing  a  person  from  voting   at  the election  of  the office-bearers merely  because  his  election  is  challenged  if  a prima  facie  case  was made  out.  No  such  point   was noted before  the Court  and none  was  decided.  It  may  be   that  the Court  in  that  case did not think   it necessary  to decide  this  aspect  of  the  matter  as  the  case  may  have  appeared  to be  a very clear  one.  It  is  well  recognised  that  the  case is  merely  an  authority  for  what it  decides  and  not   for  what  it  has   not decided.\n<\/p>\n<p>  (11)  An  argument  of  desperation  was made  by  Mr.  Kulkarni  that  as under  the Act  there  is  an alternative  remedy  to  the petitioners,  this Court  ought  not to  interfere. It  must  be  noticed  that  respondent  No. 1  was only wanting  to continue  in office  as long  as  he  could  and  realising  that his  party  may  not  be in  a majority,  made  his   best  attempts  to  prevent   the  two petitioners  from  voting  at  the election of  the office-bearers.  He  failed  before  the Collector   on  the ground   of  disqualification;  he  failed   before  the Collector  in obtaining  injunction  against  election  to  the  office  of  Sarapanch,  and  ultimately  therefore,  through   6  and 7  he  obtained  the injunction.  On  the  other  hand,  the  harm  caused   to  the petitioners  and  to  the  voters  who elected  them  is immense,  because  they  were  not  allowed  to  vote  and  respondent  No. 1  has been  able  to continue  in  the  saddle  by  election in a  trunketed  body.  The  remedy  that  is  provided  is  far  too long  and  until  the result   of  that  proceeding  is  known  respondent  No. 1 would  be  enabled  to continue  in  office  where  he  has  no  right  to  be.  We  cannot  therefore on  the  facts  of  this  case  held  that    the  remedy  which is available  to  the   petitioners   as  an  alternative  remedy  is  adequate.  This  contention  also  must  fail.\n<\/p>\n<p>  (12)  In  the result,  we set  aside  the order of injunction made by  the learned  Judge  and  quash  the   election  of respondents  1  and  3 i.e. we  grant  prayers (a), (b), (c)  and (d)  made in  the petition.  The  petition  is  allowed.  The petitioners  will  get  their  costs  from  respondents  1, 3, 6  and 7.\n<\/p>\n<p> (13) Petition  allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Bombay High Court Jagannath Pundlik And Ors. vs Sukhdeo Onkar Wankhede And Ors. on 10 August, 1966 Equivalent citations: AIR 1967 Bom 317, (1967) 69 BOMLR 300 Author: Patel Bench: Patel, Deshmukh JUDGMENT Patel, J. (1) This petition demonstrates the manner in which some of the Panchayats are working under the Panchayats Act. (2) The [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-27188","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Jagannath Pundlik And Ors. vs Sukhdeo Onkar Wankhede And Ors. on 10 August, 1966 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jagannath-pundlik-and-ors-vs-sukhdeo-onkar-wankhede-and-ors-on-10-august-1966\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jagannath Pundlik And Ors. vs Sukhdeo Onkar Wankhede And Ors. on 10 August, 1966 - Free Judgements of Supreme Court &amp; 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