Ashok Kumar Mishra & ANR Vs.
Collector, Raipur & Ors [1979] INSC 169 (4 September 1979)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) GUPTA, A.C.
CITATION: 1980 AIR 112 1980 SCR (1) 491 1980
SCC (1) 180
CITATOR INFO :
RF 1987 SC 251 (23) RF 1988 SC 268 (30)
ACT:
Constitution of India 1950, Art. 226 &
Madhya Pradesh Municipal Corporation (Preparation, Revision and Publication of
Electoral Rolls and Selection of Councillor.) Rules 1963, Rules 4(1),
4(3)-Notification issued stipulated 20 days time for filing objections to
electoral roll-Rule provided 30 days-Writ Petition filed three days before
election impugning, electoral roll-Writ if could be issued.
HEADNOTE:
On September 30, 1978 the Collector published
the preliminary electoral roll under Rule 4(1) of the Madhya Pradesh Municipal
Corporation (Preparation, Revision and Publication of Electoral Rolls and
Selection of Councillors) Rules, 1963 for the purpose of holding elections in
December, 1978 to the Municipal Corporation, and also issued a notice under the
said rule inviting claims or objections to be filed within twenty days from the
date of publication of the notice. A period of 30 days was however actually
provided in the rule. The final publication of the electoral roll was made on
November 16, .1978. After November 25, 1978 a large number of nominations were
received by the Returning officer arid the final list of candidates for the
elections with their symbols was published on December 20, 1978 and the poll
took place on December 31, 1978.
The appellants (Petitioners 1, 5 and 6) along
with some others in their writ petition filed on December 28, 1978 contended
that the entire election process had become vitiated on account of the defect
in the notice issued by the Collector under Rule 4 (1) providing 20 days for
preferring claims and objections while the rule prescribed 30 days and that by
non-compliance with this mandatory requirement, the entire election process
held on the basis of the defective electoral roll, became a nullity and therefore
the declaration of results of the successful candidates was liable to be
quashed.
The High Court held that the appellants were
not entitled to any relief as they had approached the Court after undue delay.
Dismissing the appeals this Court,
HELD: 1. It is well settled that the power of
the High Court under Art. 226 of the Constitution to issue an appropriate writ
is discretionary and if the High Court finds that there is no satisfactory
explanation for the inordinate delay, it may reject the petition if it finds
that the issue of writ will lead to public inconvenience and interference with
rights of others. This rule applies also to a case in which the validity of an
election to a local authority is challenged. The question whether in a given
case. the delay involved . is such that it dissentients a person to relief .
under Art. 226 is a matter within the discretion of the High Court which as in
all matters of 492 discretion has to exercise it judiciously and reasonably
having regard to The surrounding circumstances. [497C-D]
2. If the appellants felt that the notice
under Rule 4(3) suffered from any illegality, they could have brought it to the
notice of the Collector immediately Thereafter. It was open them to move the
State Government under Rule 6 of the Rules to make an order directing the
Collector to follow the provisions governing the preparation or the electoral
roll. It was also open to them to file a writ petition immediately after the -
publication of the said notice questioning its legality. None of the above
courses was adopted by the appellants. Persons whole claims were rejected could
have filed an appeal under Rule 5 before the Collector. No such appeal was
presented. [495H-496B]
3. It was only on December 5, 1978 for the
first time a letter was addressed by one of the petitioners to the Collector
drawing his attention to the error that had crept into the notice under Rule
4(1) of the Rules. By that time, the nominations had all been received. The
final list of candidates for the election with their symbols was published on
December 20, 1978. The writ petition itself was filed on December 28, 1978 when
the poll had to take place on December 31, 1978. No satisfactory explanation
was given in the course of the petition by the petitioners as to why they
delayed the filing;, of the petition till December 28, 1978, even though they
knew that there was an error in the notice issued under Rule 4(1). [496C-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 1617 and 1640A of 1979.
Appeals by Special Leave from the Judgment
and order dated 20-1-1979 of the Madhya Pradesh High Court in Misc. Petition No
884 of 1978.
R. P. Bhatt and Sri Narain for the Appellant
(In CA 1617/79).
G. L. Sahu and Miss Maya Ra for the Appellant
(In CA 1640A/79) an R. 54 in CA 1617/79.
Shiv Shankar Rao, H. K. Puri, V. K. Bahl and
Miss Madhu Moolchandani For RR 7-10, 13, 14, 16, 18-25, 27-29, 33-36, 39-42,
45, 49 and 50 in CA 1617 and for RR 7, 10, 13 14, 16, 18-25, 27-29, 33-36,
39-42, 45, 49 & 50 in C.A. 1640A/79.
S. K. Gambhir for RR. 5-6 in CA 1617/79.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. For the purpose of holding election to the . Municipal
Corporation of Raipur in the month of December, 1978 under the provisions of
the Madhya Pradesh Municipal Corporation Act, 1956 (No. 23 of 1956)
(hereinafter referred to as 'the Act'), the Collector of Raipur published the
preliminary electoral roll on September 30, 1978 under Rule 4(1) of the Madhya
Pradesh Munici- 493 pal Corporation (Preparation, Revision and Publication of
Electoral Rolls and Selection of Councillors) Rules, 1963 (hereinafter referred
to as 'the Rules') promulgated under the Act by the Madhya Pradesh State
Government and issued a public notice under Rule 4(1) of the Rules calling upon
persons whose names had not been included in the electoral roll and who claimed
to be included in i. and persons who had any objection to the inclusion of the
name of any person in the said electoral roll to submit their claims and/or
objections within 20 days from the date of the publication of the said notice
before Shri K. P. Pande, Deputy Collector, Raipur who had been authorised to
pass orders on such claims or objections. It was also notified that claims or
objections which had not been preferred as required under the Rules within the
prescribed period would be rejected.
The final publication of the electoral roll
under Rule 8 of the Rules was done on November 16, 1978. Thereafter the
calendar of events was published on November 25, 1978 notifying that the poll,
if necessary would take place on December 31, 1978 in all the 44
constituencies: Six petitioners including the appellants herein presented a
petition under Article 226 of the Constitution before the High Court of Madhya
Pradesh at Jabalpur on December 28, 1978 requesting the Court to make an order
quashing the electoral roll and the calendar of events issued for the purpose
of the said election and directing the respondents to refrain from conducting
the poll on December 31, 1978.
They prayed for a further direction to be
issued to the respondents calling upon them to hold the election after
preparing the electoral roll afresh in accordance with the provisions of the
Act and the Rules. They also prayed for the issue of an interim order staying the
poll which had been fixed to be held on December 31, 1978. On December 30,
1978, the learned Single Judge before whom the case came up for orders directed
the issue of notice of the petition and the stay application to the respondents
and issued an interim order directing the respondents not to notify the results
of the election under Rule 46 of the Rules pending disposal of the petition. On
December 31, 1978, the poll was held and 44 persons were declared elected.
Their names were, however, not published under Rule 46 of the Rules in view of
the interim order made by the Court. Thereafter the successful candidates were
also impleaded as respondents and the petition was amended by the inclusion of
an additional prayer that the declaration of the results of the election should
also be quashed. After the respondents filed their counter affidavits, the
petition was heard and it was dismissed by a Division Bench of the High Court
on January 20, 1979. Aggrieved by the order passed by the High Court, Ashok Kumar
Mishra and Bhagwat Singh Thakur (Petitioners No. 1 and 5 respectively in the
494 petition before the High Court) filed a petition for special leave to
appeal to this Court and Purshottam Lal Sharma (petitioner No. 6 before the
High Court) filed another petition. On special leave being granted, the above
petitions were registered as appeals.
One of the grounds on which the appellants
challenged the validity of the electoral roll, the calendar of events and the
declaration of results of election was that the entire election process had
become vitiated on account of the defect in the notice issued under Rule (1) of
the Rules notifying that claims and objections should be preferred within a
period of 20 days from the date of the publication of that notice when sub-rule
(3) of Rule 4 of the Rules prescribed that such claims and objections could be
preferred within 30 days from the date of publication of that notice. It was
alleged that by reason of a shorter period being fixed for entertaining claims
and objections, a large number or people who could have filed claims and
objections were prevented from preferring them within 30 days from the date of
publication or the notice which was the prescribed period. It was alleged that
petitioner No. 5 had filed a claim to include his name in the electoral roll on
October 19, 1978 and that was rejected by the Deputy Collector without
following the procedure prescribed for the purpose. It was also alleged that on
October 20, 1978, 34 persons mentioned in Annexure P-7 approached the Deputy
Collector to entertain their claim for inclusion in the electoral roll and he
refused to receive their applications.
It was contended that on account of
noncompliance with Rule 4(3) of the Rules, which was mandatory, the entire
election process held on the basis of the defective electoral roll '.
became a nullity and that therefore, the
declaration of results of all the 44 successful candidates was liable to be
quashed.
On behalf of the respondents, it was pleaded
that while it was true that the period of 20 days had been mentioned in the
notice issued under Rule 4(1) of the Rules, it was open to all the persons who
were interested in preferring claims or objections to file them within 30 days
from the date of publication of the notice under Rule 4(1). It was pleaded that
pursuant to the notice published under Rule 4(1) of the Rules only four claims
including that of petitioner No. S were received by the Deputy Collector; that
all the applicants were asked to appear on October 30, 1978 to substantiate
their claim and that the applications were disposed of on October 30, 1978. The
claim of petitioner No.
5 was rejected as no evidence in support of
his claim was produced before the Deputy Collector. It was further pleaded that
no other claims or objections were preferred either on October 20, 1978 or on
any other sub sequent date. The allegation that 34 persons had approached the
Deputy 495 Collector requesting him to receive their applications for inclusion
of their names in the electoral roll on October 20, 1978 was denied. They
further pleaded that the authorities would have taken action to correct the
error in the notice issued under Rule 4(1) of the Rules granting 20 days' time
to prefer claims and objections if it had been brought to their notice by the
petitioners immediately after it was noticed by them. The petitioners were not
entitled to any relief under Article 226 of the Constitution on account of the
inordinate delay involved in the presentation of the writ petition.
The High Court after hearing the parties
dismissed the petition holding (i) that respondent No. 2, the Deputy Collector
had asked petitioner No. S to appear before him on October 30, 1978 and that as
he did not produce any evidence in support of his claim, his application was
dismissed, (ii) that none of the persons mentioned in Annexure P-7 preferred
any claim before respondent No. 2 on October 20, 1978 and that he did not
refuse to receive any such claim and that no person preferred any claim or
objection after October 19, 1978 before respondent No. 2 and (iii) that the
petitioners were not entitled to any relief as they had approached the Court
after undue delay.
Since one of the grounds on which the High
Court dismissed the petition was that the petitioners were not prompt in moving
the High Court, we shall first examine whether the High Court was right in
doing so, since if we agree with the High Court on the above question, it would
become unnecessary to go into the other questions raised before us.
The Collector published the notice under Rule
4(1) of the Rules on September 30, 1978 and also called upon interested persons
to prefer claims and/or objections thereto within a period of 20 days. In
paragraph 7 of the notice, it was mentioned that claims and objections received
beyond the prescribed period would not be considered. The period prescribed for
preferring claims and objections under Rule 4(3) was 30 days. It is not the
case of the petitioners that they did not know immediately after the
publication of such notice that in the said notice a period of 20 days had been
mentioned in its preamble as the period within which the claims and objections
could be preferred and in paragraph 7 thereof it had been stated that any such
claim or objection filed beyond the prescribed period was liable to be
rejected. If they felt that the said notice suffered from any illegality, they
could have brought it to the notice of the Collector immediately 496
thereafter. It was open to them to move the State Government under Rule 6 of
the Rules to make an order directing the Collector to follow . the provisions
governing the preparation of the electoral roll. It was also open to them to
file a writ petition immediately after the publication of the said notice
questioning its legality. None of the above courses was adopted by the
petitioners. Persons whose claims were rejected could have filed an appeal
under Rule S before the Collector. No such appeal was presented. The final
electoral roll was published on November 16, 1978. It was notified that the
nominations could be filed on and after November 25, 1978 and the poll, if
necessary, would take place on December 31, 1978. After November 25, 1978, a
large number of nominations were received by the Returning officer. It was only
on December 5, 1978 for the first time that a letter was addressed by
petitioner No. 6 to the Collector drawing his attention to the error that had
crept into the notice published under Rule 4(1) of the Rules. By that time, the
nominations had all been received. The final list of candidates for the
election with their symbols was published on December 20, 1978. The writ
petition itself was filed on December 28, 19?8 when the poll had to take place
on December 31, 1978. When the petition came up for order on December 29, l
978, it had to be adjourned to December 30, 1978 at the request of the counsel
for the petitioners. No satisfactory explanation was given in the course of the
petition by the petitioners as to why they delayed the filing of the petition
till December 28, 1978 even though they knew that there was an error in the
notice issued under Rule 4(1) of the Rules in the month of October, 1978 more
than two months before the date on which i, was filed. It was, however, argued
before us relying upon a news item which had appeared in a daily called
'Nav-Bharat' dated October 21, 1978 in which there was a reference to a
statement made by the Minister for Local Self Government of Madhya Pradesh
regarding the irregularity in the division of Raipur town into different wards
for purposes of election.
It was also stated therein that in the course
of the discussion with the press-reporters on that day, the Minister had stated
that he had directed the Commissioner, Raipur Division, Raipur that the date
for inclusion of names in the electoral roll could be extended if the election
date was not affected. There was a further reference to dates of election to
Bilaspur Municipal Committee having been adjourned twice before. It is
difficult to place any reliance on the above news item for the purpose of
concluding that the Collector, Raipur had been informed about the defect in the
notice issued under Rule 4(1) of the Rules by October 21, 1978. The other
documents produced along with the writ petition referred to omissions of certain
names from the electoral roll. They do not show that any 497 of the petitioners
had raised any objection with regard to the date within which the claims and
objections could be preferred to the electoral roll mentioned in the notice. We
have, therefore, to proceed on the basis that it was only on December S, 1978
for the first time that the attention of the Collector was drawn to the said
error and that the writ petition itself was presented on December 28, 1978. No
satisfactory reason for the delay was set out in the petition.
It is well settled that the power of the High
Court under Article 226 of the Constitution to issue an appropriate writ is
discretionary and if the High Court finds that there is not satisfactory
explanation far the inordinate delay, it may reject the petition if it finds
that the issue of Writ will lead to public inconvenience and interference with
rights of others. This rule applies also to a case in which the validity of an
election to a local authority is challenged. The question whether in a given
case the delay involved is such that it dissentients a person to relief under
Article 226 is a matter within the discretion of the High Court which as in all
matters of discretion has to exercise it judiciously and reasonably having regard
to the surrounding circumstances.
We are not, therefore, impressed by the
argument that the petitioners were entitled to the issue of the writ prayed for
as of right and the delay in filing the petition should have been ignored.
On the facts and in the circumstances of the
case, we are of the view that the writ petition was rightly dismissed by the
High Court as there was no satisfactory explanation for the delay in preferring
it. We, therefore, find it unnecessary to deal with the other points urged
before us.
For the foregoing reasons, the appeals fail
and arc dismissed. We make no order as to costs.
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