Amolak Ram and Another vs The State of Himachal Pradesh and Others

C.R. Thakur, J.—Shri Amolak Ram Petitioner No. 1 is a, resident of Deonghat in Tehsil and District Solan, whereas Shri Arun K. Ghosh Petitioner No. 2 is a resident of Rajgarh Road, Ward No. 12, Municipal Committee, Solan, Tehsil and District Solan. They have filed this writ petition under Articles 226/227 of the Constitution of India for quashing the telegram, Annexure PB, dated l2th September 1977, by which the operation of the Local Self Government Department notification, dated 2nd September, 1977, regarding inclusion of certain areas within the limits of Municipal Committee, Solan, was stayed. The further prayer that has been, made in the petition is for declaring the elections of the Respondents 4 to 16 to the Municipal Committee, Solan, held on 16th June, 1978, to be void.

Deonghat to which village Petitioner No. 1 belongs was originally within the jurisdiction of the Gram Panchayat of the village but by the notification, dated 2nd September, 1977, Annexure A, the area of Deonghat, Pargana Bharoli Khurd, by virtue of the powers conferred by Sub-section (3) of Section 4 of the Himachal Pradesh Municipal Act, 1968 (hereinafter referred to as the Act) was included within the limits of Municipal Committee, Solan, with immediate effect. It is averred that the jurisdiction of the Municipal Committee by this notification was extended to the area to which Petitioner No. 1 belongs. He was formerly a voter in the Gram Panchayat, Deonghat, and (sic) by the inclusion of this area he had become the voter to the Municipal Committee, Solan, and as such was entitled to contest election from any ward of the Municipal Committee.

Petitioner No. 2 is residing in Ward No. 2, namely Dhobi ghat within the Solan Municipal Committee and his name is entered as a voter in that ward.

Since elections had to be held for the Municipal Committee in the year 1978, therefore, the Respondents on 13th December, 1977, vide Annexure A, re-fixed the number of the elected members for each Municipal Committee by this annexure, which is appended by the Deputy Commissioner with his return. The Municipal Committee, Solan, was to have 13 seats in the Municipal Committee, out of which 11 were general seats and 2 were reserved for Scheduled Castes. Out of the 13 Wards, Ward Nos. 10 and 12 were reserved for the Scheduled Castes and the constituencies which were delimited in 1974 on the basis of the (sic)operations of 1971 were prepared and finalized on 8th May, 1978. The programme of the election was finalised on 18th May, 1978 the elections were held on 18th June, 1978 and the results were notified on 20th June, 1978. The Respondents Nos. 4 to 16 were declared elected. The Petitioners thereafter filed writ petition in this Court on 22nd June, 1978.

The grievance of Petitioner No. 1 is that there was no delimitation of the Wards of the Municipal Committee as newly constituted after the inclusion of the area of Deonghat and thereby the Petitioner was deprived of his rights of franchise both as a voter as also contesting the election. The second point was that there was no electoral roll prepared since the area was no longer linked to any one of the Wards. Petitioner No. 2 came on the ground that since he was enrolled as a voter in Ward No. 12, therefore, he was also entitled to contest from any one of the constituencies. But since there was no delimitation, therefore, he was also deprived of his right to contest. Further it was one of the grievances raised by the Petitioners that Ward No. 10 had wrongly been reserved for the Scheduled Castes. This was in violation of the provisions of Rule 14(e) of the Ward Rules. The larger population of the Scheduled Castes resides, in Ward No. 9 and not in Ward No. 10. Had the area not been reserved for the Scheduled Castes the Petitioner could contest the election from Ward No. 10 and he had better chances, but for the reason that the Municipal Committee as enlarged after inclusion of his area was not delimited. So, it is in these circumstances that the Petitioners have filed this writ petition for the reliefs already detailed out in the beginning of this judgment.

The defence taken by Respondents 1 to 3 is that there was no inclusion of the area in the Municipal Committee and that the area still forms part of the Gram Sabha. There was a telegram issued on 12th September, 1977, for staying the operation of the notification, dated 2nd September, 1977, and as such there was no necessity for any demarcation when the area itself had not been included in the Municipal Committee. The demarcation had already been done in 1974 on the census of 1971.

The defence taken by the private Respondents was that, though there was inclusion of the area in the Municipal Committee but the Wards had already been delimited as shown by Annexure A to the return of the Deputy Commissioner, and, thereafter electoral rolls were prepared, the same were notified for inspection and for inviting objections but since, there were no objections, the same were finalised on 8-5-1978. Thereafter the programme for the election was chalked out on 8-5-1978, elections took place on 18-6-1978 and the results were notified on 20-6-1978, but at no stage the Petitioners came forth to raise any objection for the non-inclusion or for the non-preparation of electoral rolls. Therefore, according to these Respondents the petition is hit by laches and delay. So much public expense had been incurred on the holding of elections and that for the negligence of the Petitioners the elections cannot be declared void.

It is not disputed that a notification for inclusion of Deonghat area was issued on 2nd September, 1977, in exercise of the powers under Sub-section (3) of Section 4 of the Act. The State, i.e., Respondent No. 1, issued a telegram, Annexure B, on 12th September 1977, whereby the operation of this notification of inclusion was ordered to be stayed. In so far as Respondents 4 to 16 are concerned they admit the inclusion. Shri Bhagirath Dass learned Counsel for Respondents 4 to 16 concedes that this telegram is of no legal value. However, Shri H.K. Paul appearing for the State contends that there was no inclusion because of the issue of this telegram. The submission made by Shri Paul is wholly incorrect. Once the inclusion is made as contemplated u/s 4(3) of the Act then by virtue of Sub-section (4) of Section 4 all rules, bye-laws, orders, directions and powers made, issued, or conferred under the Act and in force throughout the whole municipality at the time shall apply to such area which has been included under the provisions of Sub-section (3) of Section 4, except as the State Government may otherwise, by notification, direct. In the instant case there is no such notification to except all rules, bye-laws, etc. etc. In furtherance of the inclusion, the Municipal Committee, Solan, had by a resolution No. 153 of 1977 sanctioned the posts of six Moharrirs and one peon and one Moharrir and one peon as leave reserve because the inclusion enlarged the jurisdiction of the area which necessitated the creation of additional posts to give effect to the inclusion order by the State.

In order to exclude any area which is a part of the Municipal Committee, there is a provision as contained in Sections 5 and 6 of the Act Section 5 which is just like Section 4, relates to the notification of intention to alter the limits of the Municipal Committee and for exclusion of the area from the Municipal Committee. Thereafter the State Government has to hear the objections, if any, filed consequent to the notification declaring the intention of the Government to exclude any area. After the expiry of six weeks from the publication of the notice and after having considered the objections, if any, which have been submitted under Sub-section (1), the State Government has to issue a notification for the exclusion of the area from the Municipal Committee. Section 7, however, deals with the effect of exclusion with which we are not concerned. Therefore, Sections 5 and 6 lay down the procedure for the exclusion of the area which has once been included as envisaged u/s 4. Annexure PB is a telegram and it definitely as has rightly been conceded by Shri Bhagirath Dass learned Counsel for Respondents 4 to 16 is a waste paper and has got no legal value. It is merely a communication from the Chief Secretary to the Deputy Commissioner. If the State Government wanted to exclude the area which once had been included then it has to follow the procedure as laid down under Sections 5 and 6 of the Act. The same not having been followed there cannot be said to be exclusion of the area of Deonghat and the submission made by Shri Paul that the area had never been included is not correct and this point, therefore, is decided against the Respondents that the area was never included or if included it stood excluded by Annexure PB.

The second point urged by the learned Counsel for the Petitioners is that there was no delimitation of the enlarged Municipal Committee after the inclusion of the area of Deonghat. The learned Counsel for the Respondents submits that there was already a demarcation of the area of the Municipal Committee into Wards which had been done in the year 1974 on the basis of 1971 census. There is no doubt that in the year 1974 there was a delimitation of the Wards but the submission of the learned Counsel for the Petitioners is that after the area was enlarged it was, obligatory upon the State Government to have delimited the constituencies afresh.

Section 255(1) of the Act makes provision for framing rules to carry out the purposes of the Act. Clause (b) provides for the rules to be framed for the division of the municipalities into Wards, or of the inhabitants into classes, or both. The State Government accordingly framed rules vide notification, dated 26th May, 1971, for the delimitation of the areas of the, municipalities into wards and these rules are known as the Himachal Pradesh Municipalities (Wards) Rules, 1970. Rule 3 provides for dividing the municipality into wards. Rule 4 talks about the limits of the wards and is in the following terms:

"In dividing the municipality into wards and defining the limits of each ward and in fixing the number of members to be elected for each ward and of seats to be reserved for the Scheduled Castes and Scheduled Tribes, regards shall be had to the following provisions, namely:

(a) every ward shall elect only one member;

(b) all the wards shall, as far as practicable, be compact areas;

(c) as far as possible the number of voters in each ward shall be evenly distributed;

(d) the limits of each ward shall be defined in all the four directions as follows:

(i) bounded on the North by,

(ii) bounded on the East by,

(iii) bounded on the South by,

(iv) bounded on the West by,

(e) seats reserved either for the Scheduled Castes or for the Scheduled tribes shall, as far as practicable, be allotted in the Wards in which the population of the scheduled castes or as the case, may be of the scheduled tribes is most concentrated on the basis of latest census.

Rule 5 states that each ward shall be known by number given to that ward serially. In addition to, a name to the ward shall be given. Rule 6 provides for the proposal to divide the municipality into wards and to define the limits of each such ward, and is in the following terms:

(1) For dividing a municipality into wards and defining the limits of each such ward, the Deputy Commissioner shall submit to the Director of Elections Local Bodies Himachal Pradesh proposal for dividing the municipality into wards and defining the limits of each such ward. The proposal of the Deputy Commissioner shall, be accompanied by a statement showing the population in the proposed wards and also a map showing the limits of the wards. The Deputy Commissioner may, for the preparation of such proposals, order the Municipality to furnish by a specified date such information as may be necessary to formulate such proposals and the Municipality shall comply with such orders...

Sub-rule (2) of Rule 6 makes it obligatory upon the Director of Elections Local Bodies Himachal Pradesh to cause the proposal for dividing the municipality into wards and defining the limits of each such ward to be published by making a copy thereof available for inspection at the office of the Municipality and displaying a notice in the Form appended to these rules. Further, it provides that the copy of the proposal for dividing the municipality into wards and defining the limits of each ward shall also be displayed at the office of the municipality concerned and publicity to the said notice shall also be given by beat of drum throughout the limits of the municipality.

Therefore, from the (Ward) Rules it is clear that each municipality has to be divided into wards and the limits of each ward are to be defined by giving the boundaries of all the four sides. The ward has got to be given a serial number besides the name. This proposal to divide the municipality has to emanate from the Deputy Commissioner and he is to submit a report to the Director of Elections Local Bodies Himachal Pradesh for dividing the municipality into wards and defining their limits. The Director of Elections thereafter shall cause the proposal to be published by making a copy thereof available for inspection at the office of the Deputy Commissioner as also at the office of the municipality concerned. A notice shall also be given by beat of drum throughout the limits of the municipality. Thererafter if anybody has got any objections, etc. he shall submit the same to the Deputy Commissioner, who in turn shall forward the same with his comments to the Director of Elections, and then the Director of Elections shall pass the final orders to divide the municipality into wards and define limits of each ward. In the instant case, admittedly, there has been no delimitation after the inclusion of the new area or of the enlarged area of the municipality. Admittedly, the delimitation is one which was made in the year 1974 on the basis of census operations of 1971.

Further for the purpose of elections to the Municipal Committee, as envisaged under Rule 3 of the Himachal Pradesh Municipal Election Rules, 1970, there shall be an electoral roll to be prepared in the manner specified under the Rules 4 to 17 by the Deputy Commissioner under the superintendence, direction and control of the Director of Elections, (Local Bodies). However, one of the provisos to this rule says that in case there are electoral rolls of an Assembly constituency then the same can be used for preparation of the draft rules for the municipal elections. Rule 4 of the aforesaid Rules lays down that the Deputy Commissioner shall prepare the roll of each constituency of the municipality. Under Rule 8 as soon as the roll of the constituency or the ward is ready, the Deputy Commissioner shall publish it in draft together with a notice intimating the date by which objection or claims with regard to the roll may be presented and the name/names of Revising Authority or Authorities to whom they may be presented. According to this rule a copy of the notice shall be pasted at the office of the Deputy Commissioner, at the office of the Municipal Committee and at such other place(s) as the Deputy Commissioner may determine. A copy of the draft electoral roll shall be made available for inspection in the office of the Deputy Commissioner and the Municipal Committee office. Rule 9 provides that claim for the inclusion of a name in the roll and every objection to an entry therein shall be lodged within a period of 15 days from the date of publication of the roll. Under Rule 10, the Deputy Commissioner is required to appoint a Revising Authority for the purpose of hearing claims and objections relating to rolls. Under Rule 12, notice of claims and objections is to be issued and thereafter the Revising Authority shall dispose of the claims and objections as envisaged under Sub-rule (1) of Rule 13 of the Rules, and the order passed by the Revising Authority shall be final. Thereafter the Revising Authority shall forward the claims and objections along with his order to the Deputy Commissioner, who shall cause the rolls to be corrected in accordance with the orders passed by the Revising Authority and shall re-publish the rolls so corrected, or if he deems fit, shall publish the preliminary roll published under Rule 8 together with a list of additions and corrections prepared in accordance with the said orders allong with a notice, and that roll shall be final roll and shall come into force from the date of its publication.

Then there is a provision for special revision of the electoral rolls which may be ordered by the State Government. Rule 17 empowers the Deputy Commissioner on an application made to him for inclusion, correction and deletion of any existing entry in the roll of any constituency if he is satisfied after such enquiry, as he thinks fit, that the entry relates to the applicant and is erroneous and defective in any particular, and he may amend the entry accordingly. Under Rule 18, any person whose name is not included in the roll of a constituency as finally published under Rule 14, may apply in the manner provided under the various Sub-rules of Rule 18.

Here, in the instant case, it is quite evident that no delimitation of the Municipal Committee was made afresh after the inclusion of the area of Deonghat nor this area had been tagged or linked to any other existing constituency delimited in the year 1974. It is also an admitted fact that no electoral roll was prepared for this area of Deonghat, and, therefore, the names of the residents of this area or for the matter of that the name of the Petitioner could not be included in any one of the rolls because this area was not linked to any constituency or ward existing nor was there any fresh delimitation. Admittedly, the Petitioners have not, therefore, been able to exercise their right of franchise. Since there was no delimitation nor any electoral roll was prepared for Deonghat nor this area was linked to any other ward previously existing, therefore, the Petitioners could not raise any objection. They came to know about this fact only after the elections that their names were not included in an electoral roll that had been prepared nor their area was linked with any ward nor any fresh delimitation had taken place, and, therefore, they were disabled from raising any objection.

Further, no notice as required under Rule 8 of the Election Rules, 1970, was issued so as to enable them to file their claims and objections. The learned Counsel, therefore, contends that a writ of quo warranto and mandamus be issued to the Respondents to the effect that Respondents 4 to 16 are not validly elected members of the Municipal Committee, Solan, and that they are holding office without any lawful authority, and also to declare the telegram, Annexure B, to be an illegal document.

The learned Counsel in order to support his submissions in these circumstances has relied on a number of authorities.

The first authority relied upon is Shiam Sunder and Anr. v. The State of Punjab and Ors. (A.I.R. 1958 Pun 128). In this case two of the residents of Barnala town who were registered as voters in the rolls of that municipality filed a petition under Article 226 of the Constitution for a writ, direction or order in the nature of quo warranto challenging the right of the Respondents who were elected as members of the municipality in that election to act as such. The petition was based on the allegation that the election was void and invalid and was vitiated by various illegalities and irregularities. On behalf of the State it was contended that the elections were legal and regular and that the Court should not interfere as the Petitioners had not taken advantage of the alternative and effective remedy available to them under the election rules by means of an election petition. In this case the State Government had issued a notification dividing the municipality into nine wards and the boundary of each ward was described in the schedule appended thereto. Election were held in the town in 1952. In 1953 the State Government included certain specified areas from outside within the Barnala Municipality by issue of a notification u/s 5(3) of the Municipal Act. This notification was issued on 30-7-1953. This additional and extended area is on all sides of the town and it appreciably, increased the area and the number of inhabitants of this town. In 1956 the Deputy Commissioner fixed September 1956 for for holding general elections for this municipality. The Administrator of the Municipality was directed to prepare the preliminary roll. The Administrator, however, wrote to the authorities concerned that he could not prepare the electoral roll and that as the population, etc., in that municipal town had increased since the 1952 elections, it was necessary to divide the town afresh into wards so that the electoral roll might be prepared. The Deputy Commissioner by his letter dated 13-7-1956, laid down that the wards for the elections would be as were in 1952 elections. However, he was subsequently informed to prepare wardwise alphabetical electoral rolls and to complete the same within a fortnight. The electoral rolls were prepared, certain objections were raised to the electoral rolls. However, ultimately the elections were held and the Respondents 3 to 12 in that case were elected. Four persons including the Petitioner, Shiam Sunder, filed an application under Rule 67 before the Pepsu Government praying that the election be set aside as material irregularities had been committed in the conduct of the elections. This application was made on 10-10-1956. The writ petition was filed on 26-12-1956 as the Government had not taken any action on the application under Rule 67. One of the grounds of attack was that after the addition of territory within the jurisdiction of the Barnala Municipality, no election wards were constituted by the Government. The Petitioners'' case was that the Administrator arbitrarily added different portions of the extended area to the existing old wards, and according to them, this could be done only by the State Government and not by the Administrator. The Government denied that the new areas were included by the Administrator in the old wards. The Government further contended that the elections were held on the basis of 1952 wards and if the names of the persons residing or carrying on business inside the extended area were inadvertently included in the rolls of old wards, then the Petitioners or other aggrieved could have got the mistake rectified by filing objections under Rule 10 before the electoral rolls were finally prepared. The Court held in sub-para three of para 10 as under:

"It follows that in an election for the entire municipality an appreciable portion of its inhabitants was not allowed to vote and that too without any valid order of the Government. This is a very serious matter. In my opinion, the 1952 delimitation had become obsolete when the boundaries of this municipality were extended in 1953 and no election could validly take place in this municipal town without new and fresh delimitation u/s 240(1)(b) and (c). A valid delimitation of constituencies is the first and essential prerequisite for a valid election. This is wanting in the present case, and its absence renders the whole election invalid.

The objection raised by the Respondents was that the Court should not interfere with the election in a writ petition in the nature of quo warranto when the Petitioners did not challenge the validity of the electoral roll under the election Rule 10 or by filing an election petition under Rule 52, and it was urged that by virtue of Rule 51 the election should not now be challenged on any ground. The Court repelled this argument on the ground that in the case before it the Petitioners no doubt could have filed objections to the inclusion of names in the rolls of 1952 wards of persons who resided or carried on business in the extended area, but since the residents as a whole in this municipal town had not been able to express their opinion properly, it appeared that a considerable number of them had been disenfranchised if the plea of the Government is to be accepted. The objection to the absence of valid delimitation of constituencies is not merely of a technical nature but is of substance. This defect was brought to the notice of the Deputy Commissioner concerned before the elections were held, but it was ignored by the authorities concerned.

From the aforesaid authority it would thus be quite apparent that the defect about the non-delimitation of the constituency had been brought to the notice of the authorities concerned by the Petitioners even before the elections were held but they, ignored the objections and it was in these circumstances that the writ petition was allowed.

The second authority relied upon is Lachhaman Singh Chuhar Singh and Anr. v. State of Punjab and Ors. (A.I.R. 1959 Punjab 522). There can be no dispute with the proposition laid down in this authority that the determination of the territorial limits of the constituencies is an essential and integral part of the process of preparation of the roll for each constituency and this cannot be left to the sweet will or the discretion of the Deputy Commissioner. It is also true that the purpose for the creation of constituencies or electoral divisions is to effect a proper representation of the localities in question keeping in view both the extent of population and their pursuits, etc.

The further authority relied upon is Bhalchandbhai Maganlal Shah v. State of Gujarat and Ors. AIR 1967 GJ 105. This was a petition under Article 226 of the Constitution for a writ of mandamus or any other appropriate direction, order of writ for quashing and setting aside the elecion of the Councillors to the Municipality for the municipal district of Petlad held on 9th July, 1962 and for a direction to Respondents 1 and 2, i.e. the State and the Collector to constitute the wards comprising the whole of the extended limits of the municipal district of Petlad and for a writ of quo warranto calling upon Respondents Nos. 5 to 32 to state as to by what authority each of them claims to hold the office of a Councillor. On 11th October, 1960 a notification was issued by the State Government u/s 4(1) to extend the limits of municipal district of Petlad by adding certain survey numbers, and the result was that the area comprised in these additional survey numbers became part of the municipal district of Petlad. But, it appears that these newly added areas were neither constituted into one or more wards or were included in any existing ward or wards whereby no one resident in the newly added area could exercise his right to vote or stand as a candidate, at an election to the Municipality and no such election could validly take place under the Act. The Municipality which was also one of the Respondent before the Court, therefore, repeatedly requested the State Government to reconstitute the wards so as to cover the newly added area, since the term of office of the existing Councillors was due to expire on 9th March, 1962, and it was necessary to hold an election to elect new Councillors. The State Government, however, did not take any steps to reconstitute the wards. In the meanwhile the Commissioner by a notification extended the term of office of the existing Councillors upto 30th June, 1962. The Municipality thereafter appointed a Special Committee to recommend how the newly added area should be incorporated in the, existing wards but the Special Committee was unable to reach an agreement and the matter was, therefore, placed before the general meeting of the Municipality. Then at that meeting a unanimous resolution was passed recommending to the State Government to incorporate the newly added area in the existing wards on the basis of geographical contiguity and a copy of the resolution was sent to the Collector on 19th February, 1962, for necessary action by the State Government. The State Government, however, did not take any action. The Municipality, therefore, addressed a letter dated 25th April, 1962, as a reminder to the Collector that the proposal of the Municipality to reconstitute the wards by including the newly added area in the existing wards on the principle of geographical contiguity was already forwarded to the Collector but it had not yet been finalised and pointed out that unless the wards were reconstituted, the unfortunate result would be that the voters within the newly added area would be debarred from exercising their right to vote. To this also no heed was given by the State Government or the Collector, and instead of reconstituting the wards, the State Government directed the Collector to proceed with the election and the Collector accordingly issued a notice fixing the dates for the various stages of the election and notifying 9th July, 1962, as the date for the holding of the election. When the notice was published the President of the Municipality once again pointed out to the Collector by his letter, dated 1st May, 1962, that if the elections were to be held according to the programme fixed by the Collector without reconstituting the wards, the voters in the newly added area would be deprived of their right to vote and the entire election might on that account be held to be illegal involving the Municipality in heavy expenses and it was, therefore, prayed that the election be postponed and in the meantime the State Government may reconstitute the wards. This also did not bear any fruit. Thereafter on 21st May, 1962, a letter was addressed by the President of the Municipality to the Secretary to the Government, General Administration Department, pointing out that if the election was held without reconstituting the wards, the voters coming within the newly added area would have no right to vote and that would create legal complications, but there was no reply to this letter too. The President ultimately wrote an express letter dated 30th May, 1962, to the Collector to extend the time of office of the existing Councillors and to reconstitute the wards in the meantime so as to enable the voters coming within the extended limits to exercise their votes during the ensuing elections. To this the reply of the State Government was that it was not possible to consider the proposal of the Municipality for reconstitution of the wards for the time being and to postpone the election. Threafter the election was held on the basis of the existing wards leaving out the newly added area. It was after the election was over that the Petitioners filed the writ petition. The Court in these circumstances allowing the writ petition held:

"The entire election has been held contrary to the provisions of the Act and the result has been that a part of the municipal district has not been represented on the Municipality and the voters in that part have been deprived of their right to vote and their right to stand as candidates at the election. This unfortunate result has come about entirely because of the inaction of the State Government to carry out its mandatory duty.

It has further been observed as under:

"It is clear from the correspondence to which we have referred above that the President of the Municipality addressed letters after letters to the State Government and the Collector and made repeated requests to them to reconstitute the wards so as to cover the newly added area and pointed out to them that if that was not done, the voters in the newly added area would be deprived of their right to vote and the whole election might be rendered illegal, but even so the State Government declined to take action in the matter and by letter dated 15th June, 1962, refused to postpone the election with the result that the impugned election was held on the basis of the existing wards. The limits of the municipal district were extended on 11th October, 1960, and the State Government had, therefore, a period of about a year and a half within which to reconstitute the wards in discharge of its mandatory duty but the State Government did not do anyting in the matter.

Shri Bhagirath Dass learned Counsel for the Respondents contended that these authorities do not assist, the Petitioners because in all these cases objections had been filed prior to the elections. I have also given the facts of the cases relied upon by; Shri Nag. From these facts at is quite manifest that before the Petitioner in those cases filed their writ petitions under Article 226 of the Constitution they had not raised objections but the same were raised by the Administrator and the President. In the last authority, Bhalchandbhai Maganlal Shah (supra), the Municipality which was a Respondent in, that case had also written to the Deputy Commissioner or for the matter of that the State Government to reconstitute the wards so as to cover the newly added area but despite all these requests the authorities paid no heed and therefore, it was because of the inaction on the part of the, authorities concerned that the election was declared invalid and a writ of mandamus was issued. In Shiam Sunder and another''s case (supra) also the President had raised objection to the absence of valid delimitation of the constituency before the election but the Deputy Commissioner ignored the objections and proceeded, with the election. In Lachhaman Singh Chuhar Singh and another''s case (supra), however, there is nothing to show if any objection was raised.

The learned Counsel for the Respondents contends that the constituencies which had been delimited in 1974 had been notified on 30th December, 1977, as per Annexure A to the return filed by the Deputy Commissioner. But that notification does not indicate the wards or their boundaries. What it says is that there would be 13 wards in the Municipal Committee, Solan, out of which 11 would be general seats and 2 would be reserved for Scheduled Castes. The fact, therefore, remains that there was no delimitation as required under Rule 4 of the (Ward) Rules 1970. It is also true that no electoral rolls for the area which had been included was made nor that area was linked to any other existing ward delimited in 1974.

Shri Bhagirath Dass then contends that it was open for the Petitioners to have filed their objections at the time of the publication of the electoral rolls if their names were not included in the rolls or their area was not included. The electoral rolls were open for inspection and they should have been vigilant, and now they cannot be allowed to challenge these elections by seeking a writ of quo warranto. For a writ of quo warranto there must be a demand before the Petitioners could file their petition. A writ of quo warranto and mandamus will not issue as a matter of right and the Petitioners before they invoke the jurisdiction of the Court must be electors. Since Petitioner No. 1 was not an elector, therefore, he had no right to seek a writ of mandamus or quo warranto.

He has firstly relied on Annada Prosad Guin and Others Vs. District Magistrate and Collector of Murshidabad and Another, wherein it has been held:

"In an application under Article 226 for a high prerogative writ, a party cannot have a relief which he has never asked for and that on a case which he has never made in the course of the actual proceedings before his coming to the High Court.

In the aforesaid case also a notice was issued by the Circle Officer of the area to the President of the Mohulla Union Board asking him to submit his proposal as to how best the Union could be divided into three wards of a reasonably equal size and how many members could properly be elected from each, but it appears that no notice was taken of that communication. Subsequently a similar notice was sent by the same officer to the President in which it was emphasised that for the purpose of ensuing general election, the Union has got to be divided into three wards and the Union Board was being invited to submit its proposal for the contemplated division in the form set out in the notice itself. The case of the Appellants was that on receipt of that the Union Board deliberated on the matter and adopted a resolution by which a certain manner of dividing the Union into three wards was decided on. The copy of the resolution was sent to the Circle Officer, who submitted his proposal for the division of the Union into wards to the District Magistrate. The proposal submitted to the District Magistrate was approved by him. Thereafter a copy of the proposal was sent to the Union Board which also received a notice that the election would be held on 13-3-1953. After that notice had been received, a petition signed by a fairly large number of persons including the Appellants was submitted to the District Magistrate. By that petition an objection was taken to the division of the Union, as purported to have been made. As no information was received as to the fate of that petition, a second petition, dated 11-2-1953 was submitted for reconsideration of the matter. Both these petitions were rejected. Thereafter the Appellants moved the High Court under Article 226 of the Constitution and obtained the Rule on 9-3-1953. Before the single Judge, two points were taken. The first was that the division of the Union into electoral wards was wholly bad in law inasmuch as the Bengal Village Self-Government Act, 1919 contained no provision for such division, inasmuch as Rule 2 of the Rules framed under Clauses (a) and (b) of Sub-section (2) of Section 101 of the Act, under which the division was claimed to have been made, was wholly ultra vires the Act. The learned single Judge dismissed the writ petition, and on appeal before the Division Bench the appeal was also dismissed and the ratio already stated above was laid down.

There is no doubt at all that for a writ of quo warranto a demand has got to be made. But, as the facts of the present case stand, it is-quite manifest that although this new area was included but there was no delimitation nor it was linked to any other pre-existing wards. Therefore, there was no question for the present Petitioners to have raised any objection with regard to the non-preparation of the roll or the non-inclusion of their names.

The further authority cited is Tejinder Paul Mann v. The State of Haryana and Ors. (1978 P.L.R. 546). This case deals the Punjab Co-operative Societies Rules and it was held therein that these rules have clearly laid down the procedure for preparation of the lists of zones and the voters and the objections, if any, to be filed. But after the voters'' list is finally approved by the committee and the same is sent to the Registrar, no objection can be raised against the voters'' list subsequently by any voter. The stage of raising objections is prior to the publication of the election programme and not afterwards. In so far as this authority is concerned it has got no bearing on the facts of the present case inasmuch as in that case one Nafe Singh who was one of the Respondent had raised objection before the Returning Officer that the nomination papers of the Petitioner, i.e. Tejinder Paul Mann may not be accepted, but the Returning Officer disallowed this objection. However, Nafe Singh had also filed his nomination papers from zone No. 6, but the same were rejected. He filed objection before the Deputy Registrar that the nomination papers of Tejinder Paul were wrongly accepted. The Deputy Registrar accepted his objection and stayed the functioning of the Petitioner as a Director of the Karnal Central Cooperative Bank. Thereafter the Petitioner moved an application to the Registrar for transfer of the case from this Deputy Registrar to some other Deputy Registrar. This was allowed and the case was accordingly transferred to the Joint Registrar, who rejected the plea of the Petitioner that it would amount to the review of the order passed by the Deputy Registrar. Thereafter the Petitioner filed a writ petition which was disposed of with the direction that the election to the office of the Chairman, Karnal Central Co-Operative Bank should not be held for a period of seven days or such time as the matter, receive the attention of Respondent No. 2, the Joint Registrar. The parties were directed to appear before the Joint Registrar, Co-operative Societies, Haryana on December 20, 1976. It was clarified in that order that it would be open to the Joint Registrar to stay or not to stay the election to the office of the Chairman of the Karnal Central Co-operative Bank. Accordingly the Petitioner again appeared before the Joint Registrar, but the Joint Registrar again rejected the plea of the Petitioner. Thereupon, the Petitioner filed the writ petition in which it was pleaded that Nafe Singh had no locus standi to challenge the nomination of the Petitioner. He was not a voter from zone No. 3, from which the Petitioner had filed his nomination paper. Nafe Singh had not filed his objections when the lists of zones and the voters'' list were prepared. Therefore, it was in these circumstances that it was held that after the voters'' list is finally approved by the committee and the same is sent to the Registrar, no objection can be raised aganst the voters'' list subsequently by any voter. In the instant case, the Petitioners are not coming forward to challenge the voters'' list, Their; main ground is that their area had not been linked to any existing wards nor the enlarged area of the Municipal Committee had been delimited afresh and thereby they had been deprived of their right to vote.

The learned Counsel has also relied upon State of Haryana and Another Vs. Chanan Mal and Others, in which it has been held:

"Any Petitioner who applies for a writ or order in the nature of mandamus should, in compliances with a well known rule of practice, ordinarily first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to, carry it out within a reasonable time before applying to a court for such an order even where the alleged obligation is established.

There is no doubt that the aggrieved party who seeks a writ of mandamus has to first call upon the authority concerned to discharge its, legal obligation. In the instant case a duty was cast upon the State Government to delimit the area. It appears that the Deputy Commissioner to whom the telegram, was sent, which Was a communication from the State to him, and without any notice to the Petitioners that the Operation of the notification dated 2nd September, 1977, was stayed, did not intentionally delimit the municipality as enlarged, because, according to the Respondents 1 and 2, the area was not at all induced, But the that remains that the area, was included.. The Petitioner and the others residents did, not have any knowledge as there was no notice e delimitation and the voters'' list published in their locality or the, so as to raise an objection and call upon the authorities to delimit the area.

The learned Counsel for the Respondents has further relied upon Dev Prakash Balmukand v. Sabu Ram Rewati Mal and Ors. (A.I.R. 1961 Pun 429). It is a Full Bench authority and it says:

"An election is in its nature an expensive and time consuming process, and, if it is to be disturbed after, the whole process has been gone through, there must be shown to have existed some material circumstance touching the substance of the election and not merely a technical breach of a technical rule.

This authority also, in my opinion, will not have any bearing because here the objection on the basis of which the elections are sought to be set aside is a material circumstances, inasmuch as this area which was included in the municipal limit was not linked to any existing constituencies nor the electoral rolls were prepared for that area, whereas in the case cited above the electoral roll was prepared in anticipation of the State Government''s direction under the proviso to Rule 8 which was issued before the preliminary roll was published, and, that the roll thus prepared was not in pursuance of the new rules.

Therefore, in these circumstances when the Respondents failed in their duty to delimit the area of the Municipal Committee after the inclusion of Deonghat area, the Petitioners cannot be expected to know that the elections would be held on the basis of 1974 wards; There was no publication of the electoral roll, in the area nor any notice for delimitation of the area to which Petitioner No. 1 belongs was made so as to attribute knowledge on the part of the Petitioner that his area was not included or that the elections were going to be held. In so far as Petitioner No. 2 is concerned his name was already there in the electoral roll. However, this defect of delimitation is of vital importance and it has led to denial of the right of franchise to the people of the area to which Petitioner No. 1 belongs. In such a case when there is a material defect, the election can be challenged and there is no question of laches as would be clear from the observations made by a Division Bench of the Madhya Pradesh High Court in Ramgulam Shri Baijnath Prasad Vs. The Collector, District Guna and Others, that election held on the basis of electoral roll which is not prepared in accordance with law the petition cannot be dismissed merely on the ground of delay.

The learned Counsel for the Petitioners had also argued that the rules of estoppel, waiver and acquiesence would not be applicable when elections have been held on the basis of illegal Amolak Ramans Anr. v. The State Of Himachal Pradesh preparation of the rolls and the non-delimitation of the constituencies after the"inclusion of the area of Deonghat. But, this point needs no discussion because the Respondents are not challenging the petition on the grounds of estoppel, waiver and acquiescence. The only agrument advanced by Shri Bhagirath Bass is that the petition, suffers from laches and delay, inasmuch as the Petitioners came to the Court only after the elections had been, held and that they had several occasions, i.e. on the date when the constituencies as framed in 1974 were published; when the electoral rolls'' were prepared in December, 1977; and again, on the date when, the election programme was published, but at no Stage or point Of time the Petitioners raised any objection and they had been quite indolent. Therefore according to him, this objection cannot now be taken at this late stage when elections have been held and a lot of expense has been incurred. No doubt the elections should not be set aside merely on technical grounds but ,if there is a vital defect, as in the present case, then this ground of laches and delay will not be material in order to defeat the petition.

The result, therefore, is that in the absence of any delimitation of the enlarged area of the Municipal Committee, Solan, after the inclusion of Deonghat, the election of the Respondents 4 to 16 to the Municipal Committee held on 18th June, 1978, is bad and is hereby quashed;

The parties are left to bear their; own costs.