Nanhoo Mal & Ors Vs. Hira Mal
& Ors [1975] INSC 214 (16 September 1975)
ALAGIRISWAMI, A.
ALAGIRISWAMI, A.
GOSWAMI, P.K.
UNTWALIA, N.L.
CITATION: 1975 AIR 2140 1976 SCR (1) 809
CITATOR INFO:
R 1988 SC 616 (8,9)
ACT:
Constitution of India, 1950, Articles 226 and
329-Writ Jurisdiction of High Courts-High Court, if could interfere in matters
relating to election.
U.P. Municipalities Act, Section 43-B-Notices
to members of Municipal Board calling for nomination to tile office of
President-Validity of procedure adopted by District Magistrate, if could be
challenged before High Court under Article 226 of the Constitution.
HEADNOTE:
To fill up a casual vacancy in the office of
the President of the Municipal Board, Soron in the district of Etah in Uttar Pradesh,
the District Magistrate issued notices to the members of the Board informing
them that nomination paper should be filed in his office by 20th of September,
1974 and if necessary the election will take place on 1st October, 1974. The
1st respondent thereupon filed a petition under Article 226 of the Constitution
challenging the validity of the procedure adopted by the District Magistrate
for holding the election and prayed for an order to the District Magistrate not
to hold the election on 1st October, 1974. The objection to the procedure for
election was based on the allegation that it did not conform to the provisions
of Rule of the U.P. Municipalities (Conduct of Election of Presidents and
Election Petitions) order, 1964. The High Court admitted the Writ Petition and
directed that the election would be subject to ultimate decision in the Writ
Petition. Consequently the election took place on the 1st of October and the
1st appellant was declared elected. Thereafter the 1st respondent filed an
application for impleading the 1st appellant and the Municipal Board as parties
and also claimed a further relief for quashing the election proceedings that
took place on the 1st of October, 1974. The High Court allowed the petition and
set aside the entire election proceedings relating to the election of the 1st
appellant as the President of the Municipal Board.
Allowing the appeal by special Leave,
HELD: The right to vote or stand for election
to the office of the President of the Municipal Board is a creature of the
statute, that is the U.P. Municipalities Act and it must be subject to the
limitations imposed by it. Therefore the election to the office of the
President could be challenged only according to the procedure prescribed by
that Act and that is by means of an election petition presented in accordance
with the provisions of the Act and in no other way. The Act provides only for
one remedy, that remedy being an election petition to be presented after the
election is over and there is no remedy provided at any intermediate stage.
[813-E, 814A-B, 814C-D] N. P, Ponnuswami v, Returning officer, Namakkal
Constituency & Ors. [1952] S.C.R. 218 relied on.
Desi Chettiar v. Chinnasami Chettiar A.I.R.
1928 Mad.
1271 and Wolverhamption New Water Works Co.
v. Hawkesford 6 C.B. (N.S.) 336 referred to.
(ii) These conclusions in Punnuswami case
were arrived at without taking the provisions of Article 329 of the
Constitution into account. Tho provisions of Article 329 are relevant only to
the extent that even the remedy under Article 226 is barred as a result of the
provisions. But on e the legal effect of the provisions of law contained in
Article 329 and in section 43-B of the U.P. Municpalities Act is taken into
account there is no room for the High Courts to interfere in exercise of their
powers under Article 226 of the Constitution.
810 Quaere: Can there be any extraordinary
circumstances in which the High courts could exercise their power under Article
226 of the Constitution in relation to elections ? [814-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 732 of 1975.
Appeal by Special Leave from the Judgment and
Order dated the 19th March, 1975 of the Allahabad High Court in Civil Misc.
Writ No. 5935 of 1974.
R. K. Garg, S. C. Agarwala, V. J. Francis, T.
M. Ansari for the Appellants.
M. C. Bhandare, R. Nagarathnam, S. Bhandare,
for Respondent No. 1.
The Judgment of the Court was delivered by
ALAGRISWAMI, J. To fill up a casual vacancy in the office of the President of
the Municipal Board, Soron in the district of Etah in Uttar Pradesh, the
District Magistrate issued notices to he members of the Board informing them
that nomination papers should be filed in his of lice by 26th of September,
1974 and if necessary the election will take place on 1st October, 1974. The
1st respondent thereupon filed a petition under Article 226 of the Constitution
challenging the validity of the procedure adopted by the District Magistrate
for holding the election and prayed for an order to the District Magistrate not
to hold the election on 1st October, 1974. The election programme had been
notified in the U.P. Gazette dated 21-9- 74 but it was published in the Gazette
dated 24-9-74.
The objection to the procedure for election
was based on the allegation that it did not conform to the provisions of Rule 6
of the U.P. Municipalities (Conduct of Election of Presidents and Election
Petitions) Order, 1964, which reads as follows:
"6. 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 equal 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 scrutiny of nominations which shall be me date next following the date
fixed under clause (a); and (c) the last date for withdrawal of candidatures
which shall be the third day after the date fixed for scrutiny of nominations;
and 811 (d) the date on which and the hours during which a poll shall, 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 I 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 dispatched by post under certificate of posting
a copy of the notice to the last known address of each member." Though
there was a prayer in the writ petition for all order to the District
Magistrate not to hold the election on 1-10-74 the learned Judges who admitted
the writ petition directed that the election would be subject to ultimate
decision in the writ petition. Consequently the election took place on the 1st
of October and the 1st Appellant was declared elected. Thereafter the 1st
respondent filed an application for impleading the 1st appellant and the
Municipal Board as parties and also claimed a further relief for quashing the
election proceedings that took place on the 1st of October, 1974.
The learned Judges allowed the petition and
set aside the entire election proceedings relating to the election of the 1st
Appellant as the President of the Municipal Board.
We are of the opinion that the whole approach
of the learned . Judges of the High Court to this problem was mistaken. After
the decision of this Court in N. P.
Ponnuswami v. Returning Officer, Namakkal
Constituency & Ors.(1), there is hardly any room for Courts to entertain
applications under Article 226 of the Constitution in matters relating to
elections. Before dealing with this question we may set out s. 43-B of the U.P.
Municipalities Act, which is the provision of law dealing with cases where the
election of the President is questioned:
"43-B. Judicial officer to decide the
question of validity of election to the office of President.-(1) No election of
the President shall be called in question except by any election petition
presented in accordance with the provisions of this Act.
(2) An election petition may be presented by
any member entitled to vote at the election or by a candidate who has been
defeated at the election on one or more of the following 'grounds, that is to
say- (a) that the returned candidate has committed any corrupt practice within
the meaning of section 28;
(1) [1952] S.C.R. 218.
812 (b) that the nomination of, any candidate
has been wrongly rejected, or the nomination of the successful candidate or any
other candidate who has not withdrawn his candidature has been wrongly
included;
(c) that the result of the election has been
materially affected by- (i) the improper rejection or refusal of a vote, or
(ii) any non-compliant with the provisions of this Act or of any rules or
orders made under this Act.
(3) An election petition shall be presented
to the District Judge, or in a district where there is no headquarters of the
District Judge, to the Civil Judge, within whose jurisdiction the municipality
to which the election petition relates is situates:
Thus the only way by which the election of a
President can be called in question is by means of an election petition
Presented in accordance with the provisions of this Act. The election itself
can be questioned only on one of the three grounds mentioned above. The only
ground in the present case on the basis of which the election of the appellant
was questioned is that there was a non- compliance with the provisions of rule
6, already referred to. Under the Act the non-compliance with any rule or order
made under the Act or any provision of the Act does not ipso facto result in
the election being set aside. That result can be set aside only if the election
Tribunal comes to the conclusion that the result of the election has been
materially affected by such noncompliance. The jurisdiction to decide the
validity of the election of a President is an exclusive one conferred on the
District Judge. In the circumstances there was no room for the High Court
exercising its powers under Article 226 in order to set aside the election. In
keeping aside the election the High Court plainly erred because it did not
consider whether the result of the election had been materially affected by
non-compliance with the rule in question. In any case that is a matter within
the exclusive jurisdiction of the District Judge.
As early as 1928 in its decision in Desi
Chettiar v. Chinnasami Chettiar(1) the Madras High Court observed:
"It is clear that there is another side
of the question to be considered, namely, the inconvenience to the public
administration of having elections and the business of Local Boards held up
while individuals prosecute their individual grievances. We understand the
election for the elective seats in this Union has been held up since 31st May
because of this petition, the result being that the electors have been unable
since then to have any representation on the Board, and the Board is
functioning, if indeed it is functioning, with a mere (1) A. 1. R. 1928 Mad.
1271.
813 nomination fraction of its total
strength; and this state of affairs the petitioner proposes to have continued
until his own personal grievance is satisfied".
These observations were quoted with approval
by this court in Ponnuswami's case (supra) In that decision this Court arrived
(supra). In that decision this Court arrived at the following conclusions:
"(1) Having regard to the important
functions which the legislatures have to perform in democratic countries, it
has always been recognised to be a matter of first importance that elections
should be concluded as early as possible according to time schedule and all
controversial matters and all disputes arising out of elections should be
postponed till, after the elections are over, so that the election proceedings
may not be unduly retarded or protracted.
(2) In conformity with this principle, the
scheme of the election law in this country as well as in England is that no
significance should be attached to anything which does not affect the
"election"; and if any irregularities are committed while it is in
progress and they belong to the category or class which, under the law by which
elections are governed, would have the effect of vitiating the
"election" and enable the per son affected to call it in question,
they should be brought up before a special tribunal by means of an election
petition and not be made the subject of a dispute before any court while the
election is in progress." In absence of any express provisions in the Act
to the contrary these principles are applicable equally to cases of elections
to local bodies also. This Court also pointed out that the right to vote or
stand as a candidate for election is not a civil right but is a creature of
statute or special law and must be subject to the limitations imposed by it. It
referred to the decision in Wolverhampton New Water Works Co. v. Hawkesford(1)
where it had been held:
"There are three classes of cases in
which a liability may be established founded upon statute. One is, where there
was a liability existing at common law, and that liability is affirmed by a
statute which gives a special and peculiar form of remedy different from the
remedy which existed at common law;
there, unless the statute contains words
which expressly or by necessary implication exclude the common law remedy, the
party suing has his election to pursue either that or the statutory remedy. The
second class o cases is, where the statute gives the right to sue merely, but
provides not particular form of remedy: there, the party can only proceed by
action at common law. But there is a third class, viz., where a liability not
existing at common law is created by a statute which at the same time gives a
special and particular remedy (1) 6 C.B. (N.S.) 336.814 814 for enforcing
it.... The remedy provided by the statute must be followed, and it is not
competent to the party to pursue the course applicable to cases of the second
class. The form given by the statute must be adopted and adhered to." and
after referring to the provisions of the Representation of the People Act
pointed out that it will be a fair inference that the Act provides for only one
remedy, that remedy being by an election petition to be presented after the
election is over, and there is no remedy provided at any intermediate stage.
This Court also held that the word 'election' connotes the entire procedure to
be gone through to return a candidate whenever we talk of elections in a
democratic country.
It follows that the right to vote or stand
for election to the office of the President of the Municipal Board is a
creature of the statute, that is, the U.P.
Municipalities Act and it must be subject to
the limitations imposed by it. Therefore, the election to the office of the
President could be challenged only according to the procedure prescribed by
that Act and that is by means of an election petition presented in accordance
with the provisions of the Act and in no other way. The Act provides only for
one remedy, that remedy being an election petition to be presented after of the
election is over and there is no remedy provided at any intermediate stage.
These conclusions follow from the decision of this Court in Ponnuswami's case
(supra) in its application to the facts of this case. But the conclusions above
stated were arrived at without taking them provisions of Article 329 into
account. The provisions of Article 329 are relevant only to the extent that
even the remedy under Article 226 of the Constitution is barred as a result of
the provisions. But once the legal effect above set forth of the provision of
law which we are concerned with is taken into account there is no room for the
High Courts to interfere in exercise of their powers under Article 226 of the
Constitution. Whether there can be any extraordinary circumstances in which the
High courts could exercise their power under Article 226 in relation to
elections it is not now necessary to consider. All the considerations applied
in coming to the conclusion that elections to the legislatures should not be
delayed or protracted by the interference of Courts at any intermediate stage
before the results of the election are over apply with equal force to elections
to local bodies.
Back