Raj Kumar and Others vs State of Punjab and Others

Alok Singh, J.—With the consent of learned Counsel appearing for the parties, both the petitions are being taken up together and are being decided by this common Judgment in view of the fact that identical facts and questions of law are involved therein.

Petitioners have filed first writ petition i.e. CWP No. 18387 of 2009 seeking relief of mandamus to declare petitioner No. 1 Raj Kumar to have been elected as President of Municipal Council, Patran, District Patiala, and further seeking relief of mandamus to command respondents No. 1 to 5 to conduct election of President/Vice President of Municipal Council, Patran and the election should be directed to be videographed.

Brief facts of the present case are that election of the Municipal Council, Patran, was held on 30.8.2009 and the notification thereof was issued by the government on 15.9.2009. As per Rule 3 of the Punjab Municipal (President and Vice-President) Election Rules, 1994 (hereinafter referred to as the Rules), election to the office of the President/Vice President should have been conducted within 14 days of the publication of the notification of election of members of the newly constituted municipality. It has further been averred that respondent No. 4 i.e. the Sub Divisional Magistrate, Patran issued a letter dated 9.10.2009 convening meeting to administer oath of allegiance and to elect the President/Vice President of the Municipality, on 16.10.2009. The meeting so fixed for 16.10.2009 was postponed/adjourned on the ground of some administrative reasons and ultimately was fixed for 29.10.2009. Instead of the Sub Divisional Magistrate, Patran, this time, Sub Divisional Magistrate, Samana with malafide intention, was appointed as an officer to administer oath and to preside over the meeting for the election of President/Vice President of the Council. On 29.10.2009, all the 15 elected members/councilors, including petitioners No. 1 to 9 and respondents No. 6 to 11 as well as nominated member i.e. MLA - petitioner No. 10 were present. Oath was administered by the Sub Divisional Magistrate, Samana. After administering oath, name of petitioner No. 1 was proposed for the post of President by the local MLA Mr. Nirmal Singh - petitioner No. 10. However, instead of declaring petitioner No. 1 as President unopposed as required by Rule 5 of the Rules, the Sub Divisional Magistrate, Samana unnecessarily postponed the meeting for an indefinite time.

This petition was filed on 30.11.2009. Petition came up for preliminary hearing for the first time on 1.12.2009. Learned Deputy Advocate General, Punjab accepted notice on behalf of respondents No. 1 to 5 and petition was directed to be listed on 22.12.2009. Thereafter, second writ petition i.e. CWP No. 89 of 2010 was filed with the allegation that on 22.12.2009, the date fixed in the first writ petition, a resolution dated 21.12.2009 electing respondents No. 6 and 7 as President and Vice President of the Municipal Council, was brought to the notice of this Court, hence necessity arose for the second writ petition to challenge the resolution dated 21.12.2009 electing respondents No. 6 and 7 as President and Vice President of the Council. It has further been averred in the second writ petition that thereafter, resolution dated 21.12.2009 was approved by respondent No. 2 and notification dated 24.12.2009 was published in the official Gazette whereby notifying the name of respondent No. 6 as President of the Municipal Council and name of respondent No. 7 was notified as Vice President of the Municipal Council. The resolution dated 21.12.2009 is challenged in the second writ petition on the ground that in the meeting dated 21.12.2009, only six members out of 16 members, were present and there was no quorum for the election.

In reply filed, it has been stated by the government that meeting dated 29.10.2009 was postponed as there was blatant rowdyism. It has further been averred in the reply that a legal notice as required under Rule 3 of the Rules, was issued to all the elected members for the meeting to be convened for 21.12.2009 and all the petitioners were informed and served with the notice for the aforesaid meeting, hence resolution dated 21.12.2009 is perfectly valid. It has further been averred that after the election was over on 21.12.2009 and has been notified on 24.12.2009, now first writ petition has been rendered infructuous and the second writ petition is not maintainable. since petitioners have legal remedy to challenge the election by way of election petition.

Mr. Akshay Bhan and Mr. Gulshan Sharma, learned Counsel appearing for the petitioners vehemently argued that from the proceedings dated 29.10.2009, it is very much clear that the only name of petitioner No. 1 was proposed by the MLA for the post of President of the Council and no other name was proposed nor respondents suggested in their reply that any other name was proposed, hence petitioner No. 1 ought to have been declared as elected President then and there and postponement of the meeting was not proper. It has further been averred that out of 15 elected members and one nominated member i.e. MLA, 10 are petitioners before this Court, hence there was no question of any quarrel and rowdyism on 29.10.2009. Learned Counsel for the petitioners further stated that during the pendency of the writ petition, it was not proper for the respondents to convene a meeting on 21.12.2009, only one day before the date fixed in the first writ petition. Mr. Bhan further contended that no legal notice as required under Rule 3 of the Rules was issued/served on the petitioners, hence meeting/resolution/election allegedly held on 21.12.2009 is illegal and avoid ab initio. He further contended that if the alleged election is void and illegal, then there is no need to challenge the same in the election petition and the jurisdiction of this Court under Article 226 is not ousted.

Mr. Kanwaljit Singh, learned Senior Advocate assisted by Mr. H.S. Sethi, appearing for the private respondents as well as Mr. S.K. Bhanot, Additional Advocate General, Punjab, submitted that there was quarrel between the petitioners themselves on 29.10.2009 because everyone wanted to become President/Vice President and the petitioners started throwing chairs on each other, hence there was no other alternative before the Sub Divisional Magistrate except to adjourn the meeting. Mr. Kanwaljit Singh further stated that since the election has been held on 21.12.2009 and relief claimed in the first writ petition was to hold election, hence the State was duty-bound to hold election without waiting result in the writ petition, hence election was validly held on 21.12.2009.

I have heard learned Counsel for the parties and perused the record.

Undisputedly, election to elect councilors/members of the municipality was held on 30.8.2009. Undisputedly, first meeting was convened on 16.10.2009 for administering both of allegiance to the newly elected councilors, which was directed to be adjourned due to some administrative reasons. Thereafter, a second meeting was convened vide letter dated 26.10.2009 on 29.10.2009. Undisputedly, on 29.10.2009, all the 16 members were present and oath of allegiance was administered to all the newly elected members on 29.10.2009. It is clear from the proceedings of the meeting dated 29.10.2009 (Annexure 4 to the writ petition i.e. CWP No. 18387 of 2009) that name of petitioner No. 1 was proposed by the local MLA for the post of President of the Municipal Council. It is clear from the proceedings dated 29.10.2009 that the meeting was directed to be adjourned by the Sub Divisional Magistrate, Samana, saying soon after the proposal of the name of Raj Kumar, Member, Ward No. 5 for the post of President, shouting/noise was raised and some members picked up chairs in their hands and atmosphere was not proper for the election of the President, and hence, meeting was postponed. It is alleged that one day before the date fixed in the first writ petition i.e. CWP No. 18387 of 2009, the meeting was convened vide notice dated 19.12.2009 for 21.12.2009 and in that meeting, respondents No. 6 and 7 were declared elected as President and Vice President of the Municipal Council. In the meeting allegedly held on 21.12.2009, only six members participated and none of the petitioners was present in the meeting dated 21.12.2009. Thereafter, election of respondents No. 6 and 7 as President/Vice President was notified on 24.12.2009.

From the respective arguments advanced by the learned Counsel for the parties, following questions arise for the consideration of this Court:

As to whether if only one name is proposed for the post of President in a meeting called u/s 20 of the Punjab Municipal Act, 1911 (hereinafter referred to as the Act) read with Rule 3 of the Rules, must be declared elected ?

As to whether alleged meeting held on 21.12.2009 was void and illegal for want of notice for the period of not less than 48 hours as required under Rule 3 of the Rules ?

As to whether this Court is competent to exercise writ jurisdiction under Article 226 of the Constitution of India if the Court finds that meeting dated 21.12.2009 is illegal, void and in violation of Rule 3 of the Rules ?

As to whether jurisdiction of this Court under Article 226 of the Constitution of India is barred merely because alternative remedy of filing election petition is available to the petitioners ?

Question No. 1.

Undisputedly, name of petitioner No. 1 was proposed by petitioner No. 10, local MLA for the post of President and no other name was proposed. Rule 5 of the Rules reads as under: -

Conduct of election.- (1) When the office of the President of the Vice President is to be filled.-

a) if only one candidate for the office is proposed, he shall be declared to have been elected;

b) if there is more than one candidate, the candidate who obtains the largest number of votes shall be declared to have been elected; and

c) if two or more candidates obtain an equal number of votes, the person presiding over the meeting shall at once decide between the candidates by drawing a lot in the presence of the members attending the meeting.

(2) When there are two offices of Vice-President of a Municipality and both such offices are to be filled.-

(a) voting shall take place at the same election for both the office of the Vice Presidents of a Municipality and each member of the Municipality shall record one vote only;

b) the two candidates who obtain the largest number of votes shall be deemed to be elected:

Provided that if owing to the fact that two or more candidates have obtained an equal number of votes, it is impossible to decide which of the two candidates have obtained the largest number of votes, the matter shall be decided by a lot in the manner specified in Clause (c) of Sub-rule (1); and

(c) the candidate obtaining the largest number of votes shall be deemed to have been declared by the Municipality to be the Senior Vice President and the candidate obtaining the second largest number of votes shall be deemed to be the junior Vice President, provided that if both the candidates elected have obtain an equal number of votes, the matter shall be decided by a lot in the manner specified in Clause (c) of Sub-rule (1).

From the perusal of Rule 5 (1)(a) of the Rules, I have no hesitation to hold that in a meeting held to elect the President or Vice President of the Municipal Council, if only one candidate for the office of President is proposed, he shall be declared to be elected then and there. Neither the Sub Divisional Magistrate nor the private respondents stated in their affidavits that other names were ever proposed nor report of the Sub Divisional Magistrate suggests that any name was ever proposed except the name of petitioner No. 1. Report of the Sub Divisional Magistrate reads as under:

Sr. No. Resolution which was presented. Today on 29.10.2009 at 11.30 AM in the office of Nagar Council, Patran, a meeting was convened under the Chairmanship of Shri Sukhwinder Singh Gill, PCS, Convener-cum-Sub Divisional Magistrate, Samana for the election of President and Vice President of Nagar Council, Patran and the following members participated in the meeting:

Shri/Shrimati

Nirmal Singh MLA Sd/- 2. Gurwant Kaur Member Sd/- Ward No. 1 3. Gurcharan Singh -do- Sd/- Ward No. 2 4. Balveer Chand Sharma -do- Sd/- Ward No. 3 5. Jasvir Kaur -do- Sd/- Ward No. 4 6. Raj Kumar -do- Sd/- Ward No. 5 7. Narinder Kumar -do- Sd/- Ward No. 6 8. Suman -do- Sd/- Ward No. 7 9. Vinod Kumar -do- Sd/- Ward No. 8 10. Mahavir -do- Sd/- Ward No. 9 11. Puspa Devi -do- Sd/- Ward No. 10 12. Faqir Chand -do- Sd/- Ward No. 11 13. Mohan Lal -do- Sd/- Ward No. 12 14. Gurdip Kaur -do- Sd/- Ward No. 13 15. Sukhjeet Singh -do- Sd/- Ward No. 14 16. Tarsem Singh -do- Sd/- Ward No. 15 Resolution No. 2 Resolution which was passed. Today on 29.10.2009 at 11.30 AM in the office of Nagar Council, Patran, the proceedings were initiated under the Chairmanship of Shri Sukhwinder Singh Gill, PCS, Convener-cum-Sub Divisional Magistrate, Samana for the election of President and Shri Nirmal Singh, MLA of Shutrana Constituency proposed the name of Shri Raj Kumar Member, Ward No. 5 and immediately shouting/noise was raised and some members picked up chairs in their hands and atmosphere was not proper for the election of the President, so, seeing the circumstances this election is postponed till further orders.

Sd/- Convener-cum-SDM, Samana, 29.10.2009.

In the opinion of this Court, instead of adjourning the meeting, the Sub Divisional Magistrate should have declared petitioner No. 1 as the President under Rule 5(1)(a) of the Rules there and then. There seems to be no justification to adjourn the meeting. Report or affidavits filed before this Court do not suggest that name of petitioner No. 1 Raj Kumar was opposed by others and members present wanted to propose name of other candidates. Not only this, out of 15 total elected members and one nominated member, 10 are before this Court and all the 10 members are in one voice saying that name of petitioner No. 1 was proposed and no other name was proposed. There is no dispute about this fact. Hence, in view of this, I find that only name of petitioner No. 1 was proposed for the post of President and no other name was proposed, hence, petitioner No. 1 should have been declared as the President then and there as he stood elected for the post of President in view of Rule 5(1)(a) of the Rules.

Question No. 2.

In view of the finding recorded by this Court that petitioner No. 1 ought to have been declared President then and there, I have no hesitation to hold that no second meeting was required to be convened to elect the President of the Municipal Council. Meeting dated 21.12.2009 was neither legal nor proper. Rule 3 of the Rules reads as under:

Manner of election.- (1) The Deputy Commissioner or any other officer authorised by him in this behalf (hereinafter referred as to the Convener) shall, within a period of fourteen days of the publication of the notification of the election of members of a newly constituted Municipality fix, by giving not place of residence of all the elected members a date for convening the first meeting of the elected members of such Municipality by stating in the notice that at such meeting, the oath of allegiance will be administered to the members present and also stating that the President and Vice President of Vice Presidents as the case may be, shall be elected.

Provided that all subsequent meetings to fill causal vacancies of the office of President and Vice President or Vice Presidents as the case may be, shall be convened by the Convener.

(2) If due to any reason, the elected member is unable or refused to take oath of allegiance as required by Sub-rule (1) within the stipulated period, then he will be allowed to take such oath of allegiance in the subsequent meeting unless he is debarred from taking the same by the Government for any reason. In case any such member does not take the oath of allegiance as aforesaid, then a fresh election to the constituency to which that member represents, shall be held.

From the perusal of Rule 3 of the Rules, I have no hesitation to hold that to convene the meeting for election of the President and Vice President of the Municipal Council, 48 hours clear notice is required to be served on the members. The meeting was convened on 21.12.2009, however, notice thereof was served on most of the members on 20.12.2009 as is clear from page 83 of the paper book. Since minimum of 48 hours clear notice is not given for the meeting, which was held on 21.12.2009, hence, meeting dated 21.12.2009 is otherwise illegal and nonest in the eye of law. I hold accordingly.

Questions No. 3 and 4.

Learned Counsel appearing for the respondents have placed reliance on the Judgment of the Full Bench of this Court in the matter of Prithvi Raj Vs. State Election Commission and Others, and argued that writ petition is not maintainable and election petition should be filed to challenge the election of respondents No. 6 and 7, which was held on 21.12.2009.

There is no doubt about the ratio of the Judgment of the Full Bench of this Court in the matter of Prithvi Raj (supra), however, in the opinion of the Court, if election was validly held on 29.10.2009, in which the only name of petitioner No. 1 was proposed, he should have been declared validly elected, hence, this Court cannot be a silent spectator and shall not refuse to exercise its writ jurisdiction under Article 226 of the Constitution of India, to issue mandamus commanding respondents No. 1 to 5 to notify election of petitioner No. 1 as President of the Municipal Council pursuant to the meeting dated 29.10.2009. Since second election was not permissible for the post of President, in view of the meeting held on 29.10.2009, hence so-called election on 21.12.2009 was absolutely void ab initio ipso facto illegal, hence there is no need to file election petition. Had it been a case of simple election, perhaps this Court would have refused to exercise its writ jurisdiction under Article 226 of the Constitution of India.

In view of the observations made hereinabove, writ petitions are allowed. Mandamus is issued to respondent No. 1 to notify petitioner No. 1 as an elected President of the Municipal Council u/s 24(2) of the Act. Meeting held on 21.12.2009 and notification dated 24.12.2009 are hereby quashed. Respondents No. 1 to 5 are further directed to convene the meeting for the election of Vice President of the Municipal Council within 15 days from today. Election of Vice President shall be held in the presence of respondent No. 3. Proceedings of the aforesaid election shall be videographed.

Both the petitions stand allowed accordingly. No Costs.

A photocopy of the order be placed on the file of connected case.