1. Three is in the town of Haveri in the district of Dharwar, a municipal council which was established under the provisions of the Bombay District Municipal Act, 1901, but is now governed by the Mysore Municipalities Act, 1964 after it came into force on may 7, 1964. But when the term of office of the sitting councillors of this municipal council was about to expire, by the Mysore Local Authorities (Postponement of Elections and Continuance of Administrators) Act, 1965 (Mysore Act XXIV of 1965) which came into force on November 18, 1965, the election of new councillors to the municipal council stood postponed during the period of the emergency. This Act under which there was a postponement of elections, and which will be referred to as the Postponement Act, was repealed by the Mysore Local Authorities (Postponement of Elections and Continuance of Administrators) Repealing) Act. 1967 which will be referred to as the Repealing Act in the course of this judgment and which came into force on January 3, 1968. Clause (a) of the proviso to section 3 of the Repealing Act empowered Government to appoint by notification in respect of the concerned local authority, a date not later than one year from the date of the commencement of the Repealing Act as the date on which the term of office of the councillors of that local authority which stood extended by section 3 of the Postponement Act shall expire.
2. By a notification made by Government under section 3 of the Repealing Act published on April 29, 1968, June 30, 1968 was the date prescribed for the expiry of the term of office of the municipal councillors of the Haveri town municipal council.
3. After the publication of that notification the Tahsildar of Haveri who was also the Returning Officer concerned, issued a notice under rule 8 of the Mysore Municipalities (Election of Councillors) Rules, 1965 made under Ss. 38 and 323 of the Mysore Municipalities Act 1964. Through the notice he published a calendar in respect of the election of new councillors to the Haveri municipal council in the vacancies which would arise on the expiry of the term of the sitting councillors on June 30, 1968. That calendar of events announced the particulars referred to in clauses (a) and (c) of R. 8(1) of those rules. Clause (c) of that rule required the Returning Officer to specify the last date for making nominations. That clause provides that that last date for making nominations shall be the seventh day after the date of publication of the notice, or calendar as it is called. It further provides that if that day is a public holiday the next succeeding day which is not a public holiday should be specified as the last date for making nominations.
4. That election calendar was issued by the Returning Officer on May 9, 1968 and it was published in the gazette on may 13, 1968. Although clause (c) of rule 8(1) does not say that an election calendar should be published in the gazette, it nevertheless refers to the date of publication from the seventh day shall be the last date for making nominations. It is not disputed that the only publication of the election calendar under the provisions of this clause was the publication made in the gazette bearing the date May 13, 1968.
5. So the seventh day after the date of the publication of the election calendar, which is also referred to as the notice, under Rule 8 (1)(c) was May 20, 1968. But, by a mistake committed by the Returning Officer, May 21, 1968 was specified as the last date for making nominations. The election calendar also announced the various dates for the scrutiny of nominations, for their withdrawal and the polling date. With these details we are not concerned in this writ petition. It is enough to state that June 17, 1968 was the date fixed for the poll.
6. In the counter-affidavit produced on behalf of the Returning Officer of which the deponent is the Returning Officer himself, he states that on May 22, 1868, quite a long time before the date on which the polling had to take place, the concerned Deputy Commissioner pointed out to him that he had committed a mistake in the specification of the last date for nominations in the election calendar which he had prepared. He also states that on the discovery of this mistake he prepared another election calendar on May 22, 1968 which was published in the gazette on May 25, 1968. This election calendar correctly specified June 1, 1968 as the last date for making nominations; that day was the seventh day after the date of the publication of the second calendar in the gazette. June 3, 1968 was the date fixed for scrutiny of nomination and June 5 was the date fixed for withdrawal and June 27, 1868 was the date on which the poll had to take place.
7. It should be mentioned here that under rule 27 the Returning Officer fixed when he prepared the first election calendar the hours during which poll shall be conducted, and this fixation is made on May 10, 1968. On May 23, 1968 the Returning Officer canceled this notification for the obvious reason that that notification in his opinion had no longer any efficacy after the preparation of the second election calendar by which a different date was fixed for the poll.
8. The petitioner before us challenges the validity of the second election calendar prepared by the Returning Officer as one prepared without competence. He asks for a mandamus to the Returning Officer that the election should be conducted in conformity with the first election calendar, and not under the second.
9. Mr. Manjappa on behalf of the petitioner and Mr. Jagnnatha Shetty appearing for the petitioner in the companion writ petition W. P. 1726 of 1968 in which a similar challenge is made to the second election calendar prepared by the Returning Officer, advanced the argument that there is more than one reason for which we should say that the second election calendar was prepared without competence. The first submission was that no election to the municipal council of Haveri could be conducted before the expiry of the term of office of the sitting councillors which expires only on June 30, 1968. It was pointed out to us that the language of the relevant statutory provisions of the Mysore Municipalities Act 1964 does not authorise an election to a municipal council until the term of the sitting councillors expires. It was therefore urged that the election now proposed to be held by the Returning Officer on June 27, 1968 even before the expiry of the term of the sitting councillors, was not in accordance with law.
10. The second submission was that the Returning Officer had no competence to publish another election calendar in supersession of the first election calendar which he had prepared, and that such supersession of the old calendar was possible only in the exercise of the power vested by rule 71 in the Commissioner or in the exercise of power created in Government by section 383 of the Municipalities Act. It was also contended that the preparation of the second election calendar was actuated by a desire to assist certain persons who had not produced their nominations within the time fixed by the old calendar, and that those who were intended to be helped in that way were those who had changed their camp on the eve of the proposed election.
11. The argument that there is an element of prematurely in the proposed election was constructed on the language of section 17 of the Municipalities Act, 1964 which reads-
'17. General election of councillors-
1) A General election of councillors shall be held for the purpose of constituting a municipal council for the first time or after the period for which an Administrator is appointed under section 315 or after the period of suppression under section 316.
2) A general election shall also be held for the purpose of filling the vacancies arising by the efflux of time in the office of the councillors.'
12. Sub-section (2) is the statutory provision under which the election now proposed to be held is authorised, and, it was maintained on behalf of the petitioner that the general election authorised by sub-section cannot be held unless a vacancy arises by efflux of time in the office of the sitting councillors. It was submitted that under the Postponement Act the term of office of the sitting councillors stood extended indefinitely during the period of the emergency and that the term so extended came to an end only on the date fixed by Government in the notification which they promulgated under clause (a) of the proviso to section 3 of the Repealing Act which reads :
'(a) the term of office of the councillors or members extended by section 3 of the Act now repealed and of the Administrators appointed or continued under section 4 or 5 of the said Act, shall expire on such date as the State Government by notification in the official Gazette appoint in respect of each local authority concerned which shall not be a date later than one year from the date of commencement of this Act; but the councillors or members or, as the case may be, the Administrators shall continue in office until the first meeting of the local authority duly reconstituted under the relevant Act, at which a quorum is present.'
13. Section 3(1)(a) of the Postponement Act which the Repealing Act repeals reads:
'3(1) On the commencement of this Act and during the continuance of the operation of the Proclamation of Emergency, notwithstanding any judgment, decree or order of any court or other authority or anything contained in any enactment by or under which any local authority is constituted or established, or continued,--
(a) no general election to, or election to fill any casual vacancy, in, any local authority shall be held, or if any such election has commenced, but the poll has not taken place, the election shall not be completed;
14. Clause (b) of this sub-section which extends the term of sitting councillors of such local authorities reads-
'the term or extended term of office of the councillors or members of the local authorities, who are in office on the date of commencement of this Act (and whose term or extended term will expire during the period of operation of the Proclamation of Emergency), shall be deemed to be extended up to and inclusive of the last day on which the Proclamation of Emergency remains in operation.
Provided that after the expiry of the term of the said councillors or members of the local authorities as so extended by this section they shall continue in office until the first meeting of the constituted local authority at which a quorum is present.
* * *'
15. When the Postponement Act stood repealed by the enactment of the Repealing Act, Government became invested with the power to issue a notification specifying the date on which such term of office which stood extended under section 3 of the Postponement Act, shall expire. And it was in the exercise of this power that June 30, 1968 was specified as the date on which the term of sitting councillors of the Haveri municipal council shall expire.
16. It would be observed that clause (a) of the proviso to S. 3 of the Repealing Act also provides that even after the expiry of the term of office on June 30, 1968 in that way, the sitting councillors shall continue in office until the first meting of the municipal council duly reconstituted at which a quorum is present.
17. The postulate constructed on the basis of the statutory provisions was that the vacancy to which section 17(2) of the Municipal Act refers arises only on June 30, 1968, and that until there is a vacancy arising in that way by efflux of time no election to the municipal council was possible.
18. We do not agree, Sub-section (2) of section 17 of the Municipalities Act says no more than that a general election shall be held for the purpose of filling vacancies 'arising by efflux of time in the office of the councillors.' It does not say that an election should not be held until after the efflux of time in the office of the councillors. What it does is to specify the purpose for which the general election shall be held, and, that purpose is the filling of a vacancy arising by efflux of time in the office of the councillors. It speaks only of the purpose and does not prescribe the point of time at which election should be conducted.
19. The normal feature of an election to a local authority or any other body is that it is conducted on the eve of the expiry of the term of the sitting members and at a reasonably antecedent point of time so that there is no hiatus in municipal or other administration. The acceptance of the argument that the election of the new councillors should wait until the old councillors cease to be members would lead to the incongruous situation that when the old councillors vacate office, no new councillors who could take the place of the old councillors would have been elected.
20. We should not understand S. 17(2) of the Municipalities Act in such a way which would lead to an anomalous situation of that description. The scheme with respect to the election of new councillors in place of the old, such as is disclosed by the provisions of the Act makes it abundantly plain that the election of the new councillors should be so conducted that the newly elected councillors step into the vacancies created in the offices of the old councillors when their term of office comes to an end.
21. We should not accede to the argument that there should be a postponement of the poll with respect to the election of the new councillors until after the old councillors vacate their office. That argument, in our opinion, cannot be sound. There is something in section 18 of the Mysore Municipalities Act which reinforces the view which we have taken. Sub-section (1) of that section reads-
'save as provided in sub-section (2), the term of office of a councillor elected at a general election and appointed under section 12 shall be four years, and shall commence on the date of publication of their names under section 20 or immediately after the expiry of the term of office of the outgoing councillors or the period of appointment of an administrator under section 315 of the period of supersession under section 317, whichever is later.'
22. Under the provisions of this sub-section, one of the points of time from which the term of a councillor commences is the date on which the term of office of the outgoing councillors expires. If that date is later than any of the other dates to which this sub-section refers, and if we accept the argument that till the vacancies arise with the outgoing councillors vacating their office, there could be no election until they so vacate their office, the term of office of the new councillors who would not have been elected, could not commence immediately after the expiry of the term of office of the outgoing councillors, and, to that extent one part of section 18(1) would become unmeaning and have no efficacy.
23. Section 17(2) does not forbid, an election under the provisions of the Municipalities Act to a vacancy which is likely to arise by efflux of time in the office of the councillors, before a vacancy arises. It would have been odd if it did. For, in that event, the term of office of the new councillors could not commence immediately after the expiry of the term of office of the outgoing councillors, although section 18 (1) says it can.
24. The infirmity in the argument to the contrary is also displayed by the provisions of clause (a) of the proviso to section 3 of the Repealing Act. It will be remembered that that clause consists of two parts. The first part authorises Government by a notification to specify the date on which the term of office of the outgoing councillors will expire. By the second part it authorises the outgoing councillors whose term has so expired to continue in office until the first meeting of the reconstituted municipal council at which there is quorum.
25. Section 17(2) upon which the petitioner placed dependence says that a general election shall be held for the purpose of filling the vacancies arising by efflux of time in the office of the councillors. The words 'in the office of the councillors' with which this sub-section concludes demonstrate that the vacancy to which a general election may be conducted is a vacancy arising by efflux of time in the office of the sitting councillors.
26. But under Section 3 of the Repealing Act the office of the sitting councillors does not come to an end until there is a meeting of the reconstituted council. So it becomes clear that on the interpretation pressed on us by Mr. Manjaappa and Mr. Jagannatha Setty the election of the new councillors cannot be held until the office of the sitting councillors comes to an end, and, the office of a sitting councillor does not come to an end unless their is an election and thereafter a meeting of the reconstituted municipal council. The alarming consequences which so ensue are that the office of the sitting councillors never comes to an end, and so there can be no election of the new councillors in their place. A construction productive of such strange consequence is plainly unacceptably. So we dismiss the argument that the proposed election has any element of prematurely.
27. At one stage it was suggested by Mesrs. Jagannath Shetty and Manjappa and by Mr. Santosh Hegde who presented his argument as an intervener that the efflux of time to which Section 17(2) of the Municipalities Act refers is the efflux of time which comes into being after the expiry of the term, and that it does not refer to the efflux which comes into being on the discontinuance of office when the first meeting of the reconstituted body is conducted.
28. We have already observed that this argument does not receive any support from the language of Section 17(2) which, as we have already observed, refers to the 'efflux of time in the office of the councilors.' It does not refer to the efflux of time on the expiry of the term which was extended by Section 3 of the Postponement Act which would be delimited by a notification made by Government under Section 3 of the Postponement Act. The distinction made on behalf of the petitioners between expiry of the term of office and the discontinuance of office when the first meeting of the reconstituted body is held is, in our opinion, groundless.
29. The next point to which we should address ourselves is whether the Returning Officer had the competence to publish a new election calendar in place of the old. It was said that the Returning Officer was a statutory authority who was bound to proceed with the election once he prepared his election calendar under Rule 8, and that the only process by which an election calendar to be prepared could be rescinded or displaced was that indicated by Section 383 of the Municipalities Act or Rule 28 or 71 of the Rules.
30. Mr. Advocate General on the contrary suggested to us that the power to maker a new calendar in supersession of the old, sprang from Rule 4(3) and from Section 21 of the General Clauses Act read with Rule 2(3).
31. We do not think that R. 28 or 71 or S. 383 of the Municipalities Act has any application to a case like the one before us. Rule 28 empowers the adjournment of a poll in an emergency, and, this is not a case in which there was any such emergency. Rule 71 authorises the Commissioner to exercise powers of superintendence and control over elections for ensuring proper conduct of elections and to make such orders as he may deem fit for that purpose.
32. Mr. Advocate General presented the argument that even if this Rule had any application, there was an order made by the Divisional Commissioner under this rule so that the election might be held according to law, and in support of this submission he depended upon an allegation in the affidavit of which the Returning Officer is the deponent, in which it is state that he was told by the Deputy Commissioner that the Divisional Commissioner had asked him to point out to him the mistake committed with respect to the specification of the last date for nominations.
33. It is not necessary for us in this case to spend any time over the consideration of the question whether Rule 71 has any application for reasons to be presently stated. But before we do so we should observe that Section 383 of the Municipalities Act to which there was an appeal by Mr. Manjappa during the course of his argument is really of no assistance to him. Clauses (a) and (c) of sub-section (1) of that section on which Mr. Manjappa depended, respectively authorise Government to make an order for bringing the provisions of the Act into effective operation and for removal of difficulties arising in connection with the 'transition to the provisions of the Act.' We do not think that there was any occasion for the exercise of any such power Government in the present case. It was not necessary for Government to make any order for bringing the provisions of the Municipalities Act into effective operation under clause (a) or for the removal of a difficulty in connection with the transition to the provisions of the new Act under clause (c).
34. The Municipalities Act, in respect of the matter with which we are concerned had effectively come into operation and there was no difficulty in connection with the transition. The real difficulty was that which emanated from the mistake committed by the Returning Officer who prepared a calendar of events in contravention of rule 8(1)(c) of the rules. That contravention consisted of the fact that he specified a wrong date as the last date on which nominations should be made. Instead of specifying May 20, 1968 as the last date on which nomination should be made, he specified May 21, 1968.
35. Although at one stage it was suggested to us that the mistake committed by the Tahsildar was no more than a mere irregularity which did not lead to the nullification of the election calendar prepared by the Tahsildar, we do not think that we can accept that contention. Rule 8(1)(c) which was made for that purpose contains an imperative direction that the seventh day from the date of the publication of the election calendar shall be the last day to be specified in it within which nominations should be made, and, that was not what the calendar did. The Tahsildar specified the eighth day and not the seventh day, and it is admitted that the seventh day was not a public holiday. And so, the election calendar prepared by the Tahsildar was without the authority of law, since it was made in plain disobedience to the provisions of the rule.
36. If that mistake was pointed out to him by the Deputy Commissioner as stated by him in his affidavit and that discovery was made in that way before the polling date, it was, in our opinion, the clear duty of the Tahsildar to prepare a new calendar of events in supersession of the old which transgressed R. 8(1)(c), and so, had no efficacy. The power to so arrest the consequences of his earlier mistake springs from the statutory duty to prepare a calendar in conformity with the rule which remains to be performed until one such is prepared. The suggestion that in that situation the election should proceed only in adherence to the calendar which contravened the rule cannot have the support of reason.
37. We are of the opinion that the Returning Officer in a situation like the one which is presented by this case, had clearly the power to supersede a calendar which is not in accordance with law and to substitute for it another which is.
38. In the view that we take it is not necessary for us to consider the argument constructed on section 21 of the General Clauses Act or on Rules 2(3) and 4(3) of the rules.
39. Before concluding we should point out that the prayer for a mandamus that the Returning Officer should conduct the election under the old calendar and not under the new, does not fit into the argument advanced on behalf of the petitioner, as rightly pointed out be Mr. Advocate General, that no election to the council could be conducted until after the expiry of the term of the existing councilors. Under the old calendar the date fixed for the poll was June 17, 1968, and under the notification issued by Government under section 3(a) of the Repealing Act the term of the existing councilors, even according to the argument advanced before us, was to expire on June 30, 1968. That being so, the prayer for a mandamus that the election should be conducted on June 17, 1968 is no longer possible since that date has expired and since the prayer is in plain contradiction of the argument as to the impermissibility of the election until after June 30, 1968.
40. At one stage Mr. Venkataranga Iyengar appearing as an intervener presented an argument that the proposed election was not possible for another reason. Depending upon the pronouncement made by the Supreme Court in Chief Commissioner. Ajmer v. Radhey Shyam, : 1SCR68 , it was asserted that the proposed election should be preceded by the preparation of an electoral roll, and that in respect of the election now proposed to be conducted there was no such preparation. This was not an argument advanced by Mr. Manjappa or Mr. Jagannatha Shetty who are concerned with the particular election to which this weir petition and Writ Petition No. 1726 of 1968 relate, and the person for whom Mr. Venkataranga Iyengar appears in his own writ petition is not concerned with the election to the Haveri municipal council and his writ petition relates to an election to a Village Panchayat.
41. At this stage Mr. Manjappa appearing for the petitioner in this writ petition and Mr. Jagannatha Shetty appearing for the petitioner in W.P. No. 1726 of 1968 ask us to desist from making any pronouncement on this aspect of the matter and intimate us that they do not press the argument based on the non-preparation of the electoral roll at this stage, and so, we refrain from investigating this matter further.
42. What remains to be considered is the argument of mala fides. The affidavit of the petitioner which makes the allegation of mala fides is as obscure as it could be, and the only charge made by him is that the new election calendar was inspired by a desire to help certain persons who were supporting the opposition to the municipal council but who had now changed their convictions and who had not filed nominations before the date fixed under the old calendar but could now find it possible to do so under the new. In the counter-affidavit produced on behalf of the Tahsildar this charge is repudiated and there is no material on which we can reach the conclusion that there is any truth in this charge, and so, we repeal this argument of mala fides.
43. Before concluding we wish to notice an argument which was advanced at one stage by Mr. Santhosh Hegde as an intervener. His argument was that the case in which he appeared presents problems other than those which are presented by the case in which we have now disposed of by this judgment. His submission was that the election in his case was conducted even before the publication of the notification by the Government under section 3 of the Repealing Act, and that an election conducted in that way was null and void. On that question it is not necessary for us to express any opinion in this case since that question does not arise in this writ petition and in W. P. 1726 of 1968.
44. What has been said so far ensures the failure of this writ petition, and so, we dismiss it. But we make no order as to costs.
45. Petition dismissed.