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Hira Vs. Chetu and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 303 of 1966
Judge
Reported inAIR1967All452
ActsConstitution of India - Article 226; Uttar Pradesh Town Areas (Conduct of Election of Members) Order 1964; Uttar Pradesh Town Area Act, 1914 - Sections 6I
AppellantHira
RespondentChetu and ors.
Appellant AdvocateS.C. Khare and ;K.C. Agarwal, Advs.
Respondent AdvocateM.S. Negi and ;S.N. Kakker, Advs.
DispositionPetition dismissed
Excerpt:
.....to declare the result clearly and in a proper manner. we have already said earlier that form 17 is highly equivocal whereas a part of it declares chetu to be elected, the other part declares hira to be elected, under these circumstances it is not a case where it can be said that either hira or chetu had been clearly declared elected. 18. we are satisfied that there was no delay on the part of the petitioner he came to this court within a month and a half from 10th of january, 1966, when for the first time his right as a member of the town area committee was challenged......also true that in the u.p. gazette dated the 7th december, 1964, there is a notification declaring hira elected. it is, however, clear that the form 17 is equivocal and also self contradictory. the number of voles shown to have been polled by hira in that form are 234 as against 262 polled by chetu. the notification in the state gazette dated 7th december, 1964 is issued under the signatures of the assistant returning officer and is based upon the concluding portions of form no. 17. it is well settled that in order to find out what exactly has been said in a document, the whole document must be read. we have already pointed out that the recitals in form no 17 are self contradictory and if one confines himself to one part of it, it is clear that chetu and not hira was elected: on the.....
Judgment:

Jagdish Sahai, J.

1. This Special Appeal is directed against the judgment of G.C. Mathur J. dated 28th April, 1966, allowing writ petition No. 670 of 1966 filed by respondent No. 1 Chetu. The last election of the Chairman and members of the Town Area Committee. Newari, district Meerut, was held on 29th of November. 1964.

2. The dispute in the present case relates to Ward No. 5 which is a double member constituency in which one seat is reserved for the scheduled caste and the other is a general seat. There were four contestants in this Ward, i.e. the appellant Hira and respondent No. 1 Chetu, both of scheduled caste and Davanand and Maujuddin for the general seat.

3. Admittedly in all 585 votes were polled. Of these at the time of counting 35 were declared invalid and the result was declared on the basis of the remaining 550 valid votes on 30th November 1964. Annexure 'G' is form No. 15 prepared by the Returning Officer on the 30th of November 1964. In this document the votes received by the various candidates have been stated as follows:

1.

Chetu

.

.

262

votes.

2.

Dayanand

.

.

285

,,

3.

Maujuddin

.

.

278

,,

4.

Hira

.

.

234

'

The same day Annexure 'H' which is form No. 17 was prepared. In this the votes polled by each of the contestants has been shown as follows:

1.

Shri Chetu

.

.

262

votes.

2.

,, Dayanand

.

.

283

,,

3.

,, Maujuddin

.

.

278

,,

4.

,, Hire

.

.

234

,,

In the U.P. Gazette Extraordinary, December 7, 1964, the following notification dated November 30, 1964, was published under the signature of the Assistant Returning Officer.

'In pursuance of the provisions of para 68 of the U. P. Town Areas (Conduct of Election of Members) Order, 1964, I hereby declare that Sri Heera of Newari has been elected to the seat reserved for members of the scheduled Castes in Ward No. 5 of Newari Town Area and Sri Daya Nand of Newari has been duly elected to fill the remaining seat in that Ward.'

In the same issue of the U. P. Gazette there, is another notification No. LB-7680/XVII-A-109-LB-1964 which so far as is relevant for purpose of the case reads:

'With reference to notification Nos. LB-7677/XVII-A 109-LB 1964 and LB 7688/XVII A-109-LB-1964, dated December, 7, 1964 and in pursuance of the provisions of para 84 of the U. P. Town Areas (Conduct of Election of Members) Order, 1964, the Govern or is pleased to notify that the Committee of each of the Town Areas named below, has been constituted:

Serial No.

Name of District

Name of Town Area

1.

.

.

2.

.

.

3.

.

.

4.

.

.

5.

Meerut

Niwari and Phalauda

4. The first meeting of the Town Area Committee after the election dated 29th November. 1964 was held on 7th of December, 1964. For this, notice was sent to respondent No. 1 Sri Chetu and not to the appellant Hira and it was the former who participated in the meeting. Thereafter in every meeting in the Town Area Committee up to December 1965 not Hira appellant but Chetu respondent No. 1 participated.

5. On 9th of December, 1965, Chetu along with five others handed over to the District Magistrate. Meerut a notice for convening a meeting of the Town Area Committee, Newari in order to consider the motion of non-confidence of the Chairman of the aforesaid Town Area Committee (hereinafter referred to as the Committee) Sri Ved Prakash Tyagi. The District Magistrate issued a notice on 29-12-1965 convening a meeting of the Committee for 10-1-1966. For this meeting notice was issued to Hira appellant and not to respondent No. 1 Chetu.

6. It is admitted that on 7th of December 1964 when Chetu for the first time participated in the meeting of the Committee he took oath of office as required by the Rules, before the Naib Tahsildar. Ghaziabad, who was deputed for that purpose by the Sub-Divisional Magistrate, Ghaziabad.

7. On 1st January, 1966 the petitioner met the District Magistrate and brought to his notice the fact that he and not Hira appellant had been elected to the Town Area Committee from Ward No. 5. The District Magistrates however, directed Chetu to make a written application which he did on January 3, 1066.It does not appear if any action was taken on this application and on the meeting of 10th January 1966. Chetu who wanted to sit in the meeting was not permitted to do so by the City Munsif who was presiding over that meeting, under the instructions of the District Magistrate. It is admitted that Hira made no attempt to join this meeting. The motion of non-confidence was put to vote by the City Munsif and five persons voted for it. Since these five did not constitute the requisite majority, the motion was declared to have been lost.

8. Aggrieved by the action of the authorities in not permitting Chetu to participate in the meeting held on 10th January 1966 and apprehending that he would be obstructed in the discharge of his duties as a member, he filed the writ petition giving rise to this Special Appeal, on 23rd of February, 1966. G.C, Mathur, J. allowed the writ petition on the ground that he was satisfied that the Returning Officer had not performed his duty in accordance with law. The learned Judge observed as follows:

Both Form No. 15 and Form No. 17 contain manifest errors. The recording of votes received by each candidate in Form No. 15 is patently wrong. Further, the declaration in favour of respondent No. 7 in Form No. 17 is not in accordance with the votes recorded in favour of each candidate in this form. If the votes recorded in Form No. 17 are correct, then the petitioner should have been declared elected and not Hira. The fact that the petitioner was administered the oath of office and functioned as a member of the Committee for over a year without any protest from respondent No. 7 supports the case of the petitioner that, in fact, he, and not Hira was elected. This situation has arisen on account of the fact that there appears to be no provision for intimation of the results of elections to the Town Area Committee either by the Returning Officer or by the District. Magistrate.' .... Every one, including respondent No. 7, appears to have thought that the petitioner had been duly elected as a member of the Committee and he took the oath and functioned as a member for over a year. If, in these circumstances, the petitioner did not file an election petition within the time prescribed therefore, he is not much to blame for it'

The learned Single Judge did not grant Chetu the relief of a writ of quo warranto by stating as follows:

'A writ of quo warranto can only be issued against respondent No. 7 (Hira) if it is found that his election was illegal in spite of the fact that he was declared to be duly elected. The petitioner's case is that he actually received a majority of the valid votes and that the declaration in favour of Hira was wrong and illegal. Learned counsel for the petitioner wants that the ballot papers be counted here to find out whether the petitioner or Hira has received a majority of valid Votes. I do not conceive that to be the function of this Courtin proceedings under Article 226 of the Constitution. A writ of quo warranto wouldnormally be issued against a person declaredby the Returning Officer to have been dulyelected only if the illegality of his election ispatent as in the case of a disqualification. But,where the illegality has to be found by a recounting of the ballot papers or by the determination of some facts, such as the commissionof a corrupt practice, a petition for a writof quo warranto would not be entertained. Theappropriate remedy in such cases would bean election petition.'

The relief granted by the learned Single Judgeis in the following words:

'I accordingly allow this writ petition, quash the declaration of the result by the Returning Officer and its publication in the official gazette and direct that the Returning Officer shall, after taking the necessary Steps, re-declare the result. If he considers it necessary, he may again count the, ballot papers and the votes received by the candidates and prepare Form No. 15 also afresh. Since the result of this order will be that respondent No. 7 (Hira) will not be able to function as, a member of the Committee and the petitioner will also not be able to function as a member as there is no declaration in his favour, it is desirable that the Returning Officer should make a fresh declaration expeditiously.'

9. We have heard Sri S.C. Khare for the appellant Hira and Sri S. N. Kacker for respondent No. 1 Chetu at some length.

10. Mr. Khare has made the followingsubmissions before us.

(1) That the right to get elected as a member of the Town Area Committee is not a common law right but is one conferred by the U.P. Town Areas Act and inasmuch as that Act provides the remedy by an election petition which Chetu admittedly did not file, this Court should not have interfered in the exercise of its jurisdiction.

(2) That in as much as Hira appellant has been declared elected, the office is full and under these circumstances a writ of mandamus which in effect the learned Single Judge has issued should not and could not have been issued.

(3) That inasmuch as in Form No. 17 Hira appellant had been declared elected and no election petition was filed, he is invested with a right to sit as a member of the Town Area Committee Newari and he cannot now be deprived of that right.

(4) That the writ petition was a belatedone and was also not bona fide. The learnedSingle Judge had not exercised his discretionrightly in entertaining the writ petition. No other submission has been made beforeus.

11. All the submissions made by Mr.Khare are interlinked and we can take themaltogether.

11A. It is true that the right to get elected as a member of the Town-Area Committee is not a common law right and is one confer-red by statute and that inasmuch as the statute provides the remedy of an election petition under Section 6-I of the Act, the normal rule is that the remedy of a person aggrieved is confined only to an election petition. Section 6-I reads;

'Jurisdiction of Civil Courts :--(1) No Civil Court shall have jurisdiction--(a) to entertain or adjudicate upon any question Whether any person is or is not entitled to be registered in an electoral roll of a ward; or (b) to question the legality of any action taken by or under the authority of an Electoral Registration Officer or of any decision given by any authority appointed under this Act, for the revision of any such roll; or(c) to question the legality of any action taken or any decision given by the Returning Officer or by any other Officer appointed under this Act in connection with an election.

(2) No election (of a member) shall be called in question except by an election petition presented in accordance with the provisions of this Act,'

12. The provisions of this section are mandatory and clearly preclude the jurisdiction of a Civil Court in respect of a matter which can be decided in an election petition, Admittedly the election of a person cannot be challenged except by means of an election petition. The question therefore that requires consideration is whether Sri Hira has been elected at all. It is true that in Form 17 he has been declared elected. It is also true that in the U.P. Gazette dated the 7th December, 1964, there is a notification declaring Hira elected. It is, however, clear that the Form 17 is equivocal and also self contradictory. The number of voles shown to have been polled by Hira in that Form are 234 as against 262 polled by Chetu. The notification in the State Gazette dated 7th December, 1964 is issued under the signatures of the Assistant Returning Officer and is based upon the concluding portions of Form No. 17. It is well settled that in order to find out what exactly has been said in a document, the whole document must be read. We have already pointed out that the recitals in Form No 17 are self contradictory and if one confines himself to one part of it, it is clear that Chetu and not Hira was elected: on the other hand if one looks to the other part of it, it appears that Hira and not Chetu was declared elected. It is unfortunate that the Assistant Returning Officer did not perform his duty vigilantly and allowed a mistake to creep in.

13. All parties concerned i.e. the Chairman of the Committee, Hira and Chetu took it that Chetu and not Hira had been declared elected. As pointed out earlier for a year Chetu attended every meeting of the Committee to the exclusion of Hira. The admitted factual position is that atleast till the date of the filing of the writ petition Hira did not participate in the meeting or take the oath of the office. The Act does not provide the grounds on which an election petition can be filed; but Rule 48 of the election Rules provide for the grounds on which an election petition can be filed. That provision reads:

'The election of any person as chairman or member of the Committee may be questioned on any of the following grounds-

(a) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes, or for any other reason was not duly elected by a majority of lawful votes;

(b) that such person committed corrupt practice as defined in Rule 49 below for the purpose of the election;

(c) that such person was not qualified to be nominated 'as, a candidate for election or that the nomination paper of a petitioner was improperly rejected.

This Rule would also show as Sub-section (2) of Section 6-1 of the Act does that what can be challenged by means of an election petition is the election of any person as a member.

14. If there has been no election of a person the occasion to file an election petition against him does not arise. In the present case as already pointed out earlier even Hira did not claim that he was elected and Chetu not only took the oath of the office in the first meeting of the Committee but continued to participate in the subsequent meeting for a year. It is true that in Form 17 there is a line to show that Hira had been declared elected but as already pointed out earlier. Form No. 17 is highly equivocal and a part of it shows that, not Hira but Chetu had been declared elected. At no time uptil 9th of December 1965 Chetu was obstructed in the discharge of his duties as a member of the Town Area Committee. He had therefore, no occasion or cause of action to file an election.

15. But assuming that he could have filed an election petition, the question that requires consideration is whether this Court is precluded from entertaining this petition in the unusual and extraordinary circumstances of the case. It is well settled that the powers of this Court conferred by means of Article 226 cannot be restricted by a provision contained in an Act of Parliament or of State Legislature. Consequently, even though as a practice and in order to respect the Legislative direction that the election shall not be challenged except by means of an election petition, there is no Insurmountable hurdle in the wav of this court in granting relief in a suitable and hard case. The Act has been passed by the U. P. Legislature and section 6-1 obviously cannot be read as a restriction on the powers of this Court under Article 226 of the Constitution of India.

16. We are unable to agree with the extreme argument advanced by Mr. Khare that the right to the office of member of a Town Area: Committee is itself limited. Mr. Khare contended that there is another way of looking into the matter. He submitted that the right a member of the Town Area Committee has in respect of his office, has a limitation attached to it, the same being that the office is taken subject to the condition that even though a person is wrongfully deprived of it he has no remedy except as provided by Section 61 of the Act and if it is not covered by that provision he has no remedy at all. In our judgment these extreme arguments are based upon a misconception of the right of a member. It is true that the right to be elected a member flows from the statute and is not a common law right. But there is a difference between the right and the remedy for asserting that right. If a person who is a member of a Committee is stopped by some others from attending the meeting of the committee, he would surely be entitled to bring a suit in a civil court for an injunction restraining those persons from interfering with his right as a member of the Committee.

17. There is a difference between a case where a person has been declared elected and his election is challenged and a case where the result of the election has not been clearly declared. In the former case the remedy is by way of an election petition, in the latter case it with be by a writ of mandamus directing the Returning Officer to declare the result clearly and in a proper manner. In the present case what we have to see is whether the petitioner was or was not elected? We have already said earlier that Form 17 is highly equivocal whereas a part of it declares Chetu to be elected, the other part declares Hira to be elected, Under these circumstances it is not a case where it can be said that either Hira or Chetu had been clearly declared elected. That being the position the remedy provided by Sub-section (2) of Section 6-1 of the Act could not be availed of by either of them. We, therefore, reject this submission of Mr. Khare.

18. We are satisfied that there was no delay on the part of the petitioner He came to this Court within a month and a half from 10th of January, 1966, when for the first time his right as a member of the Town Area Committee was challenged. We can see no mala fide also on the part of Chetu. He has a genuine and real grievance. Whereas he was performing the functions of his office unhampered for over a year he was suddenly stopped from doing so by Hira. We, therefore, reject the submission of Sri Khare that the petition giving rise to this appeal was belated or was not bona fide.

19. It is true that when an office is full a writ of mandamus does not issue, (see Sohan Lal v. Union of India, AIR 1957 SC 529, and Halsbury's Laws of England. Simonds Edition, Vol. 11 paragraph 165) (see also R. v. Chester Corpn. (1855) 25 L.J.Q.B. 61). In the present case, however, the question is whether the office is really full? We have already stated earlier that Hira did not participate in any of the meetings of the Committee at least till the end of December, 1965. He did not even assert his right as a member and did not claim to be one until the motion of no-confidence against Sri Tyagi the Chairman was tabled. We are, therefore, of the opinion that the office not full. That being the position, there is no bar to a writ of mandamus being issued in the present case.

20. Mr. Kacker also prayed that a writ of quo warranto may now be issued. We are unable to do so for the simple reason that we have come to the conclusion that Hira is not really occupying the office as a member of the Town Area Committee of Niwari.

21. The Assistant Returning Officer was performing an official and statutory duty white counting the votes and declaring the result of the election. That he has done his duty in a most careless manner, cannot be doubted. It is also clear that there has been no unequivocal declaration of the result of the Scheduled caste seat in Ward No. 5.

22. It is true that the Committee has been already constituted and the pre-constitution stage i.e. the election stage is completely over now for about two years. But in the pecullar circumstances of the case and in view of the circumstances that there has been no clear and proper declaration with regard to the scheduled caste seat in Ward No. 6, we have no alternative but to insist that the Returning Officer or the Assistant Returning Officer did actually perform the duty cast upon them:

23. It has been contended that the Returning Officer or the Assistant Returning Officer have become functus officio and that neither of them were Tribunals within the meaning of Article 227 of the Constitution of India, with the result that there is no power with this Court to direct the Returning Officer or the Assistant Returning Officer to re-declare the result after re-counting the votes and by preparing a proper Form No. 17. Mr. Khare has distinguished the case of Hari Vishnu Kamath v. Ahmad Ishaque. AIR 1955 S.C. 233 on the ground that that was the case of a Tribunal which could be re-constituted, in the instant case there is no Tribunal and for that reason Article 227 is not available.

24. The powers given to this Court under Article 226 of the Constitution are not confined to the issuing of prerogative writs alone.

25. Looking in a wide perspective it isnot only a dispute between Chetu and Hira. Itis really a case where the Town Area Committee Newari is not fully constituted because itis not known with exactitude as to who is thescheduled caste representative from ward No. 5 in that Committee. In these circumstances notonly the rights of the parties but the larger interest of the public of Newari require that thisCourt should intervene. That being the position, we are of the opinion that the order passed by G.C. Mathur, J. is legally correct andimminently just, We, therefore, dismiss thisspecial appeal and affirm the judgment of G.C. Mathur, J. dated the 28th of April, 1966.The parties shall, however, bear their owncosts. The interim order dated 17-5-1966 isvacated and the Returning Officer may declarethe result in form No. 17 as directed by thisCourt.


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