Hira Lal vs District Magistrate and Others

H.N. Seth, J.—The Petitioner Hiralal was elected as President of the Municipal Board Soron in a bye-election held in the year 1971. On 1st of February 1974, members of the Municipal Board passed a no-confidence motion against the Petitioner. Consequently, the Office of the President fell vacant. After the vacancy was duly notified, the District Magistrate Etah on 21-9-1974, issued notices to the. members of the Board informing them that a bye-election for electing the President of the Municipal Board was going to take place for which the nomination papers may be filed in his office by 26th September 1974 and, if necessary, the election would take place on 1st October 1974. According to the Petitioner at that time he had come to Allahabad in order to file a writ petition. He was, therefore, not aware of the election programme fixed by the District Magistrate. As the Petitioner was keen to contest the election again, he, while he was at Allahabad, kept on making enquiries from the Suprintendent of the Government Printing Press as to whether any notification fixing the date for filing of nomination papers for contesting the election for the office of the President of the Municipal Board Soron, had been published. Every time, till the 25th September, 1974, he was informed that no such notification had so far been published. On 25th September 1974 the Superintendent of the Government Printing Press, informed him that a news item regarding filing of nomination paper for the office of the President of the Municipal Board, Soron had been received and it was being sent for printing. He also informed the Petitioner that till then no such news item had been published in the Official Gazette which could be delivered to any one. On 26th September, 1974 one Chob Singh of village Nijhpaton met the Petitioner and told him that the nomination for the office of the President of the Municipal Board Soron were to be filed by 26th September 1974, and that the election was going to take place on 1-10-1974. The Petitioner then filed the present petition under Article 226 of the Constitution challenging the validity of the procedure adopted by the District Magistrate Etah in holding the election for the office of the President of the Municipal Board Soron and prayed that the District Magistrate be directed not to hold that election on 1-10-1974.

When the writ petition was taken up for summary hearing, it was brought to the notice of the Bench concerned that the election programme had already been notified vide notification No. 337-VI-2-1974-75 dated 21-9-1974, published in the Gazette of the same date. A copy of the Gazette was also produced for the perusal of the Court.

Learned Counsel for the Petitioner contended that the Gazette dated 21-9-1974 had not been printed on that date. In fact it was printed on or after 25th September 1974. Consequently, the election programme wherein 26th September had been fixed as the last date for filing the nomination paper, was in contravention of the provisions contained in paragraph 6 of the U.P. Municipalities (Conduct of Election of President and Election Petitions), Order 1964, and the entire procedure adopted by the District Magistrate was illegal. He requested the Court to get the necessary enquiry made from the Superintendent of the Government Press. Accordingly, the Court directed that the petition be listed for admission on 30-7-1974 so as to enable the learned Standing Counsel to make enquiries from the Suprintendent of the Government Press and to state before it the correct position in this regard.

On 30-9-1974, the learned Standing Counsel, on the basis of information received from the Joint Superintendent Government Press Allahabad, made a statement that the Government Press had issued the copy of the Gazette dated 21-9-1974, containing the notification dated 21-9-1974, fixing the election programme in question to the State Government for the first time on September 24, 1974, and that till then it was not available to any one. This statement necessarily implied that the date appointed for filing the nomination paper for election to the post of the resident was a date less than four days after the publication of notification under para 6(1) of the U.P. Municipalities (Conduct of Election of President and Election Petitions) Order 1964. Learned Standing Counsel, however, invited the attention of the Bench to the case of Akhtar Husain v. District Magistrate Moradabad Sp. A. No. 87 of 1974 connected with Sp. A. No. 88 of 1974, D/- 5-4-1974 (Alld.). In that case it was held that in a case where sub-para (2) of paragraph 6 of the 1964 Order had been complied with non-compliance with the provision of sub-paragraph (1) of Paragraph 6 of the Order did not have the effect of vitiating the election procedure. He urged that in the present case it is apparent that the provisions of sub-para (2) of paragraph b'' of the 1964 Order had been fully complied with. Accordingly, no case for interfering with or setting aside the election schedule had been made out. The Bench, however, felt that the decision of the Court in Akhtar Husain''s case required further consideration. It accordingly admitted the writ petition and directed that the papers of the case be laid before Hon''ble the Chief Justice for constituting a larger Bench for hearing the case.

At the time of admission of the writ petition, learned Counsel for the Petitioner alto made a prayer that the election of the President, which was to take place on 1st October 1974, be stayed, However, the Bench did not considered it proper to stay the election but directed that the election would be subject to ultimate decision in the writ petition. Consequently, the election took place on 1st October 1974 and one Sri Nannumal Gupta was declared elected as President of the Board.

The Petitioner then filed an application dated 17-12-1974, praying that in view of the changed situation, Sri Nannumal Gupta and the Municipal Board boron, be also impleaded as Respondents in the writ petition. This prayer was allowed on 19th December, 1974 and Sri Nannumal Gupta and the Municipal Board boron were impleaded as Respondents No. 3 and 4 in the writ petition. By another amendment the Petitioner claimed a further relief for quashing the election proceedings that took place on 1st October 1974, wherein Sri Nannumal Gupta had been declared elected as President of the Board.

On behalf of the Respondents four counter affidavits have been filed. The burden of these affidavits is that in this case the provisions of paragraph b'' of the 1964 Order had been fully complied with. Even if there was some non-compliance of the provision of paragraph 6(1) of the Order the provisions of paragraph 6(2) of the Order had been complied with fully. In such case, it could not be said that the election that took place on 1-10-1974 was vitiated. According to the Respondents the Petitioner had full and timely knowledge of the election programme and he could, if he so liked, file his nomination paper. He did not file his nomination as the majority of the members had made it clear to him that they would not support his candidature. He filed the present writ petition merely to obstruct the wishes of the members of the Board. In the circumstances, even if there was some irregularity in publising the election programme, this Court should not exercise its discretionary power in favour of the Petitioner specially when he could obtain adequate relief by filing an election petition as provided in the U.P. Municipalities Act.

In order to decide whether the procedure adopted by the District Magistrate Etah in holding the election for the office of the President of the Municipal Board on 1st October 1974 was regular or not, it will be useful to notice to relevant statutory provisions. Section 44-A of the U.P. Municipalities Act 1960 provides that if a casual vacancy occurs in the office of the President owing to death, resignation or removal or due to the avoidance of election, the members of the board shall elect a President in the same manner as far as may be, as is provided in Section 43 and u/s 43-C for the election of President at a general election. Section 43 lays down that the elected members of the Municipal Board shall elect a President in accordance with the system of proportional representation by means of a single transferable vote and the voting at such election shall be by secret ballot. Section 43-C confers upon the State Government power to make orders providing for matters concerning the election of President. In exercise of its powers u/s 43-C, the State Government passed the U.P. Municipalities (Conduct of Election of President and Election Petitions) Order 1964, Paragraph 6 whereof reads thus:

Appointment of date for nomination etc.

(1) As soon as may be after the election of members of a board is completed at a general election within the meaning of Section 43 of the Act or a casual vacancy occurs in the office of President of a Board, the District Magistrate shall by notification in the Official Gazette appoint for the election to the office of President of the Board

(a) the date for making nominations which shall be a date at least four days after the date of notification; and

(b) the date for scrutinising of nominations which shall be the date next following the date fixed under Clause (a); and

(c) the last date for withdrawal of candidature which shall be the third day after the date fixed for scrutiny of nominations and

(d) the date on which and the hours during which a poll, if necessary be taken

Provided that the date for taking the poll shall be a date not more than five days after the last date fixed under Clause (c)

(2) On the issue of notification under sub-para (1), the Returning Officer shall give public notice of the election in Hindi in form X by affixing a copy of the notice at his office and another copy at the office of the Board and in such other manner, if any, as he may think fit and shall also cause to be despatched by post under certificate of posting a copy of the notice to the last known address of each member.

Whenever a casual vacancy occurs in the office of the President of the Board, the District Magistrate has to fix an election programme, viz. that he has to Appoint (1) the date of making nominations (2) the date of scrutiny of nomination papers (3) the last date of withdrawal of candidature and (4) the date on which and the hours during which the poll, if necessary, is to take place. The only method prescribed for appointing those dates is by publishing a notification in the Official Gazette. The order does not contemplate the appointment of the dates for tiling nomination papers etc. by any other method. This paragraph further lays down that the date of making nomination shall be a date of at least four days after the date of the notification.

In this case, in view of the statement made by the Standing Counsel at the time of the admission of writ petition, (which statement has already been referred to in the earlier portion of this judgment), it cannot be disputed that notwithstanding the fact that the Gazette, in which the notices issued by the District Magistrate fixing the election programme, was published is dated 21st September 1974, the Gazette itself had not been published before 24th of September 1974. So long as the Gazette was not published, it could not be said that the notification in question had been published. It is, therefore, obvious that the notification, as required by sub-para (1) of paragraph 6 of the 1964 Older, was published after 24th of September 1974 and that the date fixed for filing the nomination as mentioned therein viz. 26th September 1974, was not a date which was at least four days after the date of publication of the notification.

Sri S.C. Khare, learned Counsel appearing for the Respondents contended that paragraph 6 of the 1964 Order envisages that first of all the D.M. is to make a notification fixing the election programme and thereafter that notification has to be published in the Gazette. Such notification comes into existence even before it is actually published in the Gazette and its date would be the date when it is actually made or signed by the District Magistrate. The date of the notification is not altered merely because it is sent for publication to the Superintendent of the Government Press and is actually published on a later date. In this case, the notification was sent to the Superintendent Government Press for publication on 13th of September 1974. The date of filing of the nomination paper was fixed as 26th September 1974, which was a date more than four days after the date of notification. In any case, 26th of September 1974 was a date which wag more than four days after 21st of September 1974 when the notification in question was sent to individual members of the board. Accordingly, there was no non-compliance with the provision of paragraph 6(1)(a) of the Order which provides that the date of nomination shall be a date not less than four days from the date of the notification (as distinguished from the date of publication of the notification).

We are unable to accept this submission made by Sri Khare. The expression notification has been defined in Section 2(10) of the U.P. Municipalities Act as meaning a notification published in the Official Gazette. Accordingly, any announcement made under the U.P. Municipalities Act can be considered to be a notification, only when it is published in the Official Gazette. Notwithstanding that a particular announcement under the Municipalities Act may have been drawn up by the District Magistrate earlier it will be deemed to have become a notification only when it is actually published in the Gazette. Publication of that announcement in any other manner will not give to it the status of a notification. In the context, the date of the notification means the date on which it is published in the Official Gazette. It is significant to note that in the instant case, although the proposed announcement fixing the election programme was drawn up in the office of the District Magistrate and was sent to the Government Press for publication on 13-9-1974, still it purported to bear the date 21-9-1974. It was so dated as the District Magistrate thought that it would be published in the Gazette of that date. At that time the District Magistrate could not envisage that the Gazette dated 21-9-1974 would be published by the Government Press on a subsequent date It is therefore clear that the District Magistrate also, in our opinion, rightly thought that the date of notification would be the date when the Gazette containing the notification would be published. We are, therefore, of opinion that in the context of the U.P. Municipalities Act, the date of notification would not be date when the notification was drawn up, but it would be the date when the Gazette containing it is published. Since the Gazette containing the notification in question was published on 24-9-1974. the date fixed for filing nomination papers (26th September) was not after four days of the date of notification and there has been a clear violation of the provisions of paragraph 6(1)(a) of the 1964 Order.

We now proceed to consider the effect of such non-compliance on the election held on 1-10-1974. Sri S.C. Khare relied on the Division Bench decision of this Court in the case of Aktar Husain v. District Magistrate Moradabad Sp. A. No. 86 of 1974, connected with Sp A. No. 88 of 1374, D/- 5th April 1974)(Alld.) and urged that the object underlying paragraph 6(1) of the Order merely is to give public notice of the election programme. Printing and publication under sub-para (1) is not the only mode in which the election programme fixed by the District Magistrate is to be published. Sub-para (2) of paragraph 6 prescribes the following modes for giving public notice of the election programme:

(1) By affixation of a copy of the notice on the office of the returning officer.

(2) By affixing of another copy at the office of the Municipal Board.

(3) By despatching of copies by post to each member of the Municipal Board.

(4) In any other manner the returning officer may think fit.

Accordingly, where the provisions of sub-para (2) have been fully complied with and every person in the Municipality comes to know of the election programme, breach of sub-para (1) of paragraph 6 would not affect or touch the substance of the election. So long as the person raising the grievance has not been prejudiced the election procedure should not be interfered with at his instance.

We are unable either to accept the submision made by Sri S.C. Khare or to subscribe to the view expressed by the Division Bench in Akhtar Husain''s case. The language used in sub-para (1) of paragraph 6 seems to indicate that apart from the fact that its provisions are directed to give public notice of the election programme, they are mainly concerned with the prescription of the mode by which the dates for nomination, scrutiny of nomination papers etc. are to be appointed. The only method prescribed for appointing the dates for nomination, scrutiny etc. for election to the post of President of the Board is to do so by means of a notification published in the Official Gazette. So long as such a notification is not published, it cannot be said that the date for filing of nomination paper, or their scrutiny have in law been appointed. The provisions relating to the fixing of the dates of nomination and scrutiny etc. in connection with an election are certainly matters of substance. In law no election can take place unless the dates for filing nomination papers etc. have been fixed strictly in accordance with statutory provision. The language used in sub-para (2) of paragraph 6 viz ''on issue of notification under sub-para (1) the District Magistrate shall give public notice of the election'' makes it clear that the occasion for giving such public notice arises only after a notification under sub-paragraph (1) has been published. Any publication by the District Magistrate of the election programme before the publication of notification under paragraph 6(1) will not be in accordance with paragraph 6(2) and it cannot, in law, result in the appointment of the dates for filing nomination papers etc.

Section 43-B(1) runs thus:

* * * *

Whereas under Clause (c) of Sub-section (2) mentioned above, election can be set aside only if it is shown that its result has been materially affected by the improper rejection or refusal of a vote or for any non-compliance with the provisions of the Act or of any rules made under the Act; under Clause (b) thereof, the election of a candidate is to be set aside if it is either shown that his nomination has been wrongly included or that the nomination of some other candidate has been wrongly rejected, irrespective of the fact whether such inclusion or exclusion of nomination paper has or has not materially affected the result of the election. The nomination of a candidate can be said to be wrongly accepted or rejected only when the same has been accepted or rejected in a manner contrary to that laid down in the Act or the Rules or Order made thereunder, It follows that the policy underlying the U.P. Municipalities Act clearly is that the provisions contained in the Act, Rules or Order relating to the acceptance or rejection of nomination papers are to be construed as mandatory and any non-compliance with those provisions is to render the election invalid. It cannot be doubted that the provisions contained in paragraph 6(1) of the 1964 Order providing for fixing the date for filing of the nomination paper, their scrutiny and withdrawal are provisions relating to circumstances in which a candidate''s nomination is to be accepted or rejected. We have therefore, no doubt notwithstanding the mode of publication of the information provided for in sub-para (2) of Paragraph 6 of the 1964 Order, the provisions of paragraph 6(1) of the Order are mandatory and no election can take place unless these provisions have been fully complied with.

Sri S.G. Khare, learned Counsel for the Respondents then argued that granting of relief in a petition under Article 226 of the Constitution is discretionary. Section 43-B(1) makes the legislative policy clear that an election of the President can be called in question only by an election petition presented in accordance with the provisions of the Municipalities Act. Since in this case, the election has been held, this Court will not, in exercise of its discretionary powers, interfere with the election when from the affidavits filed by 11 of the members, who constituted absolute majority, it is clear that they were not prepared to support the candidature of the Petitioner. It may be mentioned that the argument of Sri S.C. Khare is not that because of the provisions of Section 43-B(1)of the Municipalities Act the jurisdiction of the High Court to set aside the election of the President of the Municipal Board, in exercise of the powers under Article 226 of the Constitution, has been ousted. His argument merely is that the exercise of the power under Article 226 of the Constitution being discretionary it should not be exercised in the instant case even if there was some irregularity in the election process. We are not satisfied that if in this case, it is found that the election has been wrongly held, this Court should refuse to exercise its discretionary powers under Article 226 of the Constitution. The Petitioner approached this Court promptly and at a stage when the election for the office of the President had not taken place. He challenged the validity of the election programme as fixed by the District Magistrate. He also prayed that holding of the election on 1st October 1974 be stayed. At that stage the Petitioner was not challenging the election of any President, and the provisions of Section 43-B(a) did not apply at all. If the contention of the Petitioner had substance there was, at that stage, no reason for not exercising the extraordinary jurisdiction under Article 226 of the Constitution. When, on Petitioner''s request for interim relief, this Court directed that the result of the election would be subject to the decision of the writ petition, it clearly implied that it permitted the election to take place only on the understanding that if it is found that there was merit in the writ petition and the writ petition is allowed, that election would be inoccuous and without any effect. In these circumstances we feel that this Court should not refuse to exercise its extraordinary jurisdiction merely because another remedy by means of an election petition is available. In this view we derive considerable support from the observations of the Supreme Court in the case of Calcutta Discount Co. v. Income Tax Officer AIR 1961 SC 273 paras 28 to 31.

Further it is also debatable whether an election petition as provided for u/s 43-B(1) read alongwith Sub-section (2) would lie for challenging the election on the ground that the election programme had not been drawn up in accordance with law. It can be argued with considerable force that the provisions of Section 43-B(1) contemplate election petitions in cases where there has been an election in law. That provision does not apply when there has been no election in law. In a case, where the date of filing of nomination paper, scrutiny and that of holding of election had not been fixed in accordance with law it would not be possible to say that there has been an election in law. In view of the fact that we have held that Section 43-B(1) does not oust the Constitutional powers of this Court under Article 226 of the Constitution and that this is not a fit case in which exercise of that power should be refused, it is not necessary for us to pronounce finally on this aspect of the case.

In the result the petition succeeds and is allowed with costs. The entire election proceeding relating to election of Respondent No. 3 as President of Municipal Board Soron held on 1st October 1974 is set aside.