1. This is an application filed by the petitioners under Article 226 of the Constitution praying for the issue of Writs of Prohibition, Mandamus and Quo Warranto against the respondents in connection with the election held to the Municipal Council at Gubbi on 28-2-1956.
2. The facts that have given rise to this petition are briefly as follows:
The petitioners and respondents 3 to 17 are residents of Gubbi Town in Tumkur District. The 1st respondent is the Returning Officer and the Amildar, of Gubbi, and the 2nd the Commissioner for Local Self-Government respondents 3 to 17 have been elected to the Municipal Council at Gubbi in the election held on 28-2-1956. Petitioners are stated to be some of the voters of Gubbi Town. Their contention is that the election is illegal and void on various grounds, that the respondents 3 to 17 have no right to sit as Councillors, that they should be prevented from doing so and that the Writs as prayed for are to be issued against them.
3. The respondents oppose the application. The point that arises for consideration is whether the petitioners are entitled to the relief prayed for In the petition. It appears to us that there are not sufficient grounds to allow the petition. The election is sought to be challenged as invalid and void on the following grounds:
1. that two units or areas 15(a) and 15(b) not contiguous to each other and having different boundaries have been formed into one division as Division No. 15 contrary to the provisions of the Town Municipalities Act;
2. that by allowing the voters of the scheduled castes to exercise their franchise the 15th Division has been formed into a separate electorate and that this contravenes the provisions of Section 9 of the Town Municipalities Act which contemplate only reservation of seats to scheduled castes;
3. that Divisions made and boundaries fixed for the election held on 1951-52 have been adopted for 1956 election and that this is contrary to the provisions of Section 11 of the Town Municipalities Act Which contemplate fresh notification and fresh divisions and fixation of fresh boundaries;
4. that the Returning Officer did not stick to the first election calendar issued by him, that fresh election calendars superseding the previous piles have been issued, that the date fixed for publication of copies of notice of candidature has subsequently been postponed or altered, that the Returning Officer had no jurisdiction to issue a fresh election calendar, which power vests only in the Deputy Commissioner; and
5. that the Sheristedar received notices of candidature without authority and that, therefore, the election should be held invalid.
4. On a careful examination of the several contentions raised on the side of the petitioners, we are of opinion that there is no substance in any of these. It is, no doubt, true, and it is also admitted, that two units, 15(a) and 15(b), not contiguous to each other and having different boundaries have been formed into one Division as Division No. 15 but there is no substance in the contention that contiguity is necessary for the formation of a Division and that each Division must have common boundaries and that such formation is contrary to Section 11 of the Town Municipalities Act. Section 11(1) reads thus :
'For the purposes of election of councillors to fill the seats referred to in Sub-section (1) of Section 9, the municipality shall be divided into 15 or 20 territorial divisions as the case may be, the boundaries of which shall after consultation with the municipal council, be fixed by the Commissioner by notification in the Mysore Gazette.'
There is nothing in this section that prohibits-formation of divisions consisting of non-contiguous areas.
It only provides for the formation of divisionsand fixation of boundaries by the Commissioner bynotification in the Mysore Gazette after consultation with the Municipal Council concerned. Thuswe see no substance in the contention that the provisions of Section 11, Town Municipalities Act have beencontravened or in the contention that the electoralroll prepared on the basis of the present divisionsis void.
5. Coming to the next point urged by the learned counsel for the petitioner that a separate electorate has been created or formed contrary to the provisions of s. 9, Town Municipalities Act which provides for reservation of seats for scheduled castes. We see no force in this also nO doubt, Section 9 of the Town Municipalities Act provides for reservation of seats for scheduled castes.
But it is not correct to say that by forming a division like Division No. 15, a separate electorate has been created. The contention urged by the learned counsel was that the Sub-divisions 15(a) and 15(b) forming Division No. 15 contain only people of scheduled castes. This statement of fact has been disputed by the first respondent, though the third respondent says that it is so. At any rate, it is not established that Sub-divisions 15(a) and 15(b) consist only of people of scheduled castes.
In the absence of an unqualified admission or proof, it is not possible to accept the contention that the 15th Division is inhabited only by persons of scheduled castes, particularly in view of the un- disputed fact that Divisions Nos. 1, 2 and 3 also contain people of scheduled castes. Even if by accident a division contains only voters of a particular community, it cannot be inferred that it was intended to create a separate electorate. There-fore this contention also should fall to the ground.
6. It is, no doubt, true that the present divisions and boundaries have been formed and fixed in the year 1951, that the same have been adopted for the election held in 1956 and that no fresh divisions were made or new boundaries fixed for the latest election by a fresh notification, but we cannot accept the contention that Section 11 of the Town Municipalities Act contemplates formation of new divisions and fixation of fresh boundaries at the time of each election. There is really nothing in Section 11 to indicate that it was the intention of the Legislature to form fresh divisions and fix new boundaries at the time of each election.
When no changes have occurred in between the date when the divisions were formed and boundaries were fixed and the date of the new election which necessitate formation of new divisions and fixation of new boundaries, we do riot see why there should be formation of fresh divisions and fixation of new boundaries at the time of each election. It is admitted that the present divisions were formed and the boundaries fixed in the year 1951.
For nearly five years, the petitioners kept quiet without objecting to this course even though they had opportunities to do so. There does not also appear to be any truth in the contention that 78 voters who are residents of the new A. K. Colony have been included in the electoral rolls of 1956 or that A. K. Colony is outside the limits of the boundaries fixed for the year 1951. This fact is also disputed by the 1st respondent and further It is not proved to the satisfaction of the Court.
7. The other contention urged on the side of the petitioners was that the calendar of events dated 8-5-1955 first issued by the Returning Officer has not been adhered to, that it has been superseded subsequently by another calendar of events dated 17-12-1955 which in turn has been superseded by a calendar of events dated 10-1-1956 It was also urged that the date 2-2-1956 fixed for presentation of notice of candidature in the calendar of events dated 8-12-1955 has been altered to 4-2-1953 and again altered to 7-2-1956 under the calendar of events dated 10-1-1956.
This statement of fact is no doubt admitted in the counter-affidavit filed by the 1st respondent. It must also be conceded that the Returning Officer has no power to issue a new calendar of events or to supersede the one already issued or after the dates fixed for presentation of notice of candidature Inasmuch as this power is vested in the Deputy Commissioner under Rule 73 of the Rules framed under the Town Municipalities Act.
In this case, the question of change of calendar of events does not at all arise inasmuch as, in our opinion, it is only the notification dated -16-1-1956 that is really the calendar of events. The admission on the part of the 1st respondent that the calendar of events was issued first on 8-12-1S55 and that fresh calendars of events were issued superseding the previous ones is due to some bona fide mistake on his part because from a reading of the notifications dated 8-12-1955 and 17-12-1955, It is soon that they are merely provisional calendars of events and not the final ones.
Item No. 6 in these two alleged calendars of events is 'publication of notice of election calendar' which publication is contemplated by Rule 15. If these were the election calendars, there was no need for this information being furnished in these two notifications. Further the contents of the notifications dated 8-12-1955 and 17-12-1955 do not correspond to the information that a calendar of events is required to contain under Rule 15.
On the other hand, it is only the calendar of events of date 16-1-1956 that contains all the particulars contemplated under Rule 15, and it is awarding to this that the election is said to have taken place. Therefore we see no substance in this contention also.
8. It is admitted that notice of candidature was received by the Sheristedar as contended on the side of the petitioners. But the counter-affidavit filed by the 1st respondent makes it clear that a notification under Rule 17 was issued authorizing the Taluk Sheristedar to receive notice of candidature and that the same is said to have been published in the gazette dated 21-1-1956. At any rate, this point was not seriously pressed at the time of arguments.
9. There is another aspect which we cannot fail to take note of. In this case most of the grounds urged against the validity of election are-disputed. A High Court dealing with an application under Article 226 of the Constitution does not and cannot constitute itself a Court of facts. It is only when facts are either admitted or established to the satisfaction of the Court and when the question to be decided is one of law that a High Court will make up its mind to consider the matter.
Disputed questions of fact cannot satisfactorily be decided in a summary proceeding as the one under Article 226 of the Constitution, We are of opinion that this is not a fit case wherein we can grant any relief to the petitioners under Article 226 of the Constitution.
10. There Is also no substance in the contention raised on the side of the respondents that the petitioners having no personal interest in the result of elections cannot question the election of the respondents and that they cannot file a petition under Article 226 of the Constitution. Any person though not personally interested can apply for a Writ of Quo Warranto. For these various reasons, we are of opinion that the petition should fail.
11. In the result, the petition fails and thesame stands dismissed with two sets of costs, oneto respondents 1 and 2 and the other to the rest.Advocate's fee Rs. 100/-.
12. Petition dismissed.