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Milakhraj Vs. Jagdish Chandra and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 59 of 1956
Judge
Reported inAIR1957Raj293
ActsRajasthan Municipal Boards Validating Act, 1956 - Sections 1 and 2; Rajasthan Town Municipalities Act, 1951 - Sections 10 and 19; Constitution of India - Articles 13, 20 and 226; Rajasthan Town Municipal Election Rules, 1951 - Rule 14
AppellantMilakhraj
RespondentJagdish Chandra and ors.
Appellant Advocate M.M. Vyas, Adv.; L.N. Chhangani, Govt. Adv.
Respondent Advocate Sumerchand Bhandari, Adv. for Non-Petitioner (No. 14)
Disposition Application dismissed
Cases ReferredTekchand v. Banwarilal
Excerpt:
.....to this court under article 226 and challenge the election, if this were permitted, we would be negativing the policy of the legislature which in its wisdom has thought fit that an election to a municipal board, if it is to be challenged by electors, should be challenged by at least 10 of them......of its intention to do so, but no steps were taken, as required by section 7 of the rajasthan town municipalities act (no. xxiii) of 1951, to cause a copy of the notification to be posted in conspicuous places in the area affected. consequently it was urged that the subsequent notification of december, 1954, altering the limits was not valid.2. the election was held ward-wise, but as this was against the policy of the government, which was later conveyed to the collectors, the whole election was invalid as the whole area oe the municipal limits of karanpur should have been treated as one ward returning multiple members.3. the notice given for conducting the election, which was to be held on the 26th april, 1956, was against the provisions of rule 14 of the rajasthan town.....
Judgment:

Wanchoo, C.J.

1. This is an application under Article 226 of the Constitution by MiJakhraj..for a writ of quo warranto in connection with the election of the Municipal Board of Karanpur.

2. The applicant is a resident of Karanpur and is a voter. The applicant's contention is that the election to the Municipal Board of Karanpur held in 1955 and in April, 1956, was illegal for the following reasons :

1. The limits of the Karanpur Municipality were defined by the former Bikaner Government by notification in 1930. In September 1954, however, the Government of Rajasthan decided to alter the limits, and published a notification of its intention to do so, but no steps were taken, as required by Section 7 of the Rajasthan Town Municipalities Act (No. XXIII) of 1951, to cause a copy of the notification to be posted in conspicuous places in the area affected. Consequently it was urged that the subsequent notification of December, 1954, altering the limits was not valid.

2. The election was held ward-wise, but as this was against the policy of the Government, which was later conveyed to the Collectors, the whole election was invalid as the whole area oE the municipal limits of Karanpur should have been treated as one ward returning multiple members.

3. The notice given for conducting the election, Which was to be held on the 26th April, 1956, was against the provisions of Rule 14 of the Rajasthan Town Municipalities Election Rules, and, thersL'ore, the election, which was held on the 26th April, 1956, for Ward No. 3 was, in any case, invalid.

3. The application has been opposed on behalf of the opposite parties, and the nature of their opposition would appear from what we shall say with reference to the three points raised on behalf of the applicant.

4. So far as. the question of the operation of the limits oE the municipality is concerned, the opposite parties rely on the Rajasthan Municipal Boards Validating Act (No. 37) of 1956. The relevant portion of Section 2 oE this Act is as follows :

'' 1. Notwithstanding anything to the contrary contained in any enactment, law or rule or in any judgment, decree or order of any Court-

(a) all municipal boards constituted before and functioning as such at the commencement of this Act shall be deemed always to have been properly constituted and to have had legal existence since the date of their constitution.

(b) in cases where the limits of their jurisdiction have been defined, the limits of the jurisdiction of each such board shall always be deemed, from the date of such definition, to have been the limits as so defined irrespective of whether or not a formal declaration in respect of such definition has been made.

(c) In cases whether such limits have not been defined, the limits of jurisdiction of each such board shall always be deemed, from the date of its constitution till the date of any such subsequent definition, to have been the same as the recorded limits of the town after which the Municipality is named or, as the case may be, for which such board was constituted.

(d) .....

(e) .....

Explanation--The expression ''recorded limits of a town' means the limits of that town as recorded in revenue records.

2. No such tax, rule, bye-law or other action shall be liable to be called in question nor shall the propriety or otherwise of the constitution of any Municipal Board or of the definition of its limits of jurisdiction as stated in Sub-section (1) shall be challenged in any court on the ground of any error, omission or defect of form, procedure or publication.'

5. The intention oE this Act is to validate the constitution of all Boards which might have been Invalid on account, of any law or rule or any judgment, decree or order of any court, and to provide limits of the jurisdiction of the Board where there was some defect in the declaration or where there was no declaration at all with respect to the limits. Further Sub-section (2) provides that the definition of the limits of jurisdiction of a board shall not be called in question in any Court on the ground of any error, omission or detect of form, procedure or publication. We are of opinion that in view of this provi-sion the defect of procedure in the matter of' publication, which the applicant points out, is of no consequence, and the boundaries of the Board must be deemed to be as provided bythe notification of December, 1954.

6. It was urged, however, that this Act itself was invalid, and the argument was that as a result of this Act the Rajasthan Town Municipalities Act would apply to all municipalities, the constitution and jurisdiction of which were validated'by this Act. The Rajasthan Town Municipalities Act, it is Sub-mitted. contains certain penal provisions also. Therefore this Act was applying in fact the penal provisions retrospectively under the Rajasthan Town Municipalities Act to those areas which would now be deemed to be included in the various municipal boards whose existence was validated by this Act, and this was against Article 20 of the Constitution.

7. There is, in our opinion, no force in this contention. It is enough to point out that this Act does not directly provide for any penal provisions of a retrospective nature. The argument that its effect would be to provide such penal provisions retrospectively is, in our opinion, of no force, for Article 20 would immediately come to the rescue of any one who is prosecuted on the basis of any retrospective effect of this Act so far as penal provisions in the Rajasthan Town Municipalities' Act are concerned. Article 20 lays down that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence. Therefore, if any person is prosecuted on the supposed retrospective effect of the Validating Act with respect to penal provisions in the Rajasthan Town Municipalities Act. he can always claim the protection of Article 20 which in effect prohibits retrospective creation of offences. The protection of Article 20 being thus available in, case someone takes it into his head to use this Vali-dating Act as a retrospective Act i'or the provision of offences under the Rajasthan Town Municipalities Act, there is no question of the Validating Act itself being hit by Art- 20 read with Article 13, for the Validating Act nowhere provides directly for any such retrospective creation ot offences. We are, therefore, of opinion that the Validating Act is valid, and is not hit by Article 20. The argument, therefore, that the election to the municipal board should be set aside on the ground that there was illegal alteration of the limits of the Board falls.

8. The next argument is that the election was held ward-wise, and that it should really have been held treating the entire area of the Municipal Board as one multi member ward. The facts in this connection are that the Government, by a notification of the 18th of June, 1955, fixed wards in the municipal board of Karanpur under Section 10 of the Rajasthan Town Municipalities Act. That order has never been cancelled, and the elections were held according to thte provisions of that order. The applicant relies in this connection on a letter of the Govermnent, dated the 4th of November, 1955, and addressed to all Collectors. That letter draws the attention of the Collectors to the fact that Government has delegated powers under Section 10 of the Rajasthan Town Municipalities Act to them. It then says that while acting under those powers the Collectors should adhere to a certain policy. The letter goes on to mention those principles to which the Collectors should adhere, and the first principle that is mentioned is that elections in towns having population of ten thousand or below should be held on single constituency basis. i. e. there shall be one ward. It is urged that the Karanpur municipality is a town of less than ten thousand population, and therefore, according to this declaration of policy, the election should have been held on one ward basis, aud inasmuch as it was held on the basis of Government's notification dated the 18th June 1955, which created a number of wards, it was illegal. We are of opinion that there is no force in this argument and the effect of the Government's letter dated 4th of November, 1955, is being misunderstood. That letter does not supersede Government's orders already passed before the issue of that letter defining wards of municipal boards. It points out to the Collectors that they have been delegated the powers under Section 10 and then in effect tells them that if and when they exercise that power they should follow certain principles. It follows from this that any orders under Section 10, which were already in force, have not been set aside by this letter of the 4th of November. Those orders could only be set aside either by Government under other orders under Section 10, or by the Collectors under their delegated powers under Section 10. This letter of the 4th November merely directs the Collectors that if and when they exercise their delegated powers, they should follow certain principles; but so long as the Collectors do not exercise the delegated powers, the orders already passed validly under Section 10 stand. In this case, the Government themselves had passed orders under Section 10 defining the wards of this municipality. Those orders were not cancelled at any time before this letter was issued; nor did the Collector after receipt of this letter decide to act under the power delegated to him under Section 10 to change those orders. In these circumstances, the mere fact that the Collectors were beinj told in this letter that in future if they use their delegated authority under Section 10, they shjuld follow certain principles would not supersede the orders of Government already passed under Section 10. Thus the first principle, to which the attention of the Collectors is drawn in this letter, is not an order ot the Government superseding all orders passed by it under Section 10 with reference to municipal boards with a population of ten thousand or less. It is merely advice to the Collectors that in future if they desire to act under the power delegated to them, they should act in this manner. We are, therefore, of opinion that the orders of the 18th June, 1953, defining the wards in this municipality still stood when the election was held, and the election cannot be invalid on the ground that it was held ward wise, and that the whole area of the Board was not treated as a single multi-member ward. There is no force in this point also, it is hereby rejected.

9. The last contention that was raised (and we may say here that no other points were raised except these three during'the arguments before us) was that the election was invalid because Rule 14 of the Rajasthan Town Municipal Election Rules had not been complied with. So far as that is concerned, we are of opinion that the applicant cannot be allowed to come in writ on that ground to this Court. Rule 14 provides for a written notice of not less than one month before the date fixed for election. Under Section 19 of the Rajasthan Town Municipalities Act, a provision is made for an election petition by any candidate who stood for election, or any ten persons qualified to vote at the election. Such election petition has to be made to the District Judge, and by this petition the petitioner can ask the District Judge to determine the validity of the election. It is clear that the validity of the election can be challenged on any ground including an error by the officer charged with carrying out the rules made under Clause (b) of Sub-section (3) of Section 205, and Rule 14, on which the applicant relies, is one of those rules. If the error has materially affected the result of the election, the election can be set aside (vide Explana tion to Sub-section (5) of Section 19). This being the law, it was possible to challenge the election which was held on the 26th April 1956, by an election petition. It may be mentioned that when this application was made on the 20th April 1956, the election of ward No. 3 had not been held till then. It was actually held later, and the right to make an election petition would arise after the result had been declared. It was, therefore, possible to file an election petition with respect to this election in ward No. 3 after the election was over. We cannot permit the applicant to come to this Court even before the election was over to have the election set aside when there is a specific provision in the Town Municipalities Act for having the election set aside by an election petition. We may also point out that Section 19 provides that any ten persons qualified to vote at the election would be entitled to mate an election petition. In the face of that provision, it would, in our opinion, be improper for any one elector like the applicant to come to this Court to challenge an election even after it has been held on the ground that the law only entitles ten electors to present an election petition, and therefore one elector should be allowed to come to this Court under Article 226 and challenge the election, If this were permitted, we would be negativing the policy of the Legislature which in its wisdom has thought fit that an election to a municipal board, if it is to be challenged by electors, should be challenged by at least 10 of them. If we were to say that because of this provision one elector can come to us and challenge the election, we would in effect be setting aside the provision of the law which requires that ten electors should join together in filing an election petition against a municipal election. We are, therefore, of opinion that as it was open to ten electors to challenge the election from ward No. 3 after it had been held, if the provision of rule 14 of the Rajasthan Town Municipal Election Rules was not complied with, we should not in our extra-ordinary jurisdiction go into that very, matter on the application of one elector even before the election was held. We can only go into a matter of this kind after the Election Tribunal has decided the matter. We may in this connection refer to what we said in Tekchand v. Banwarilal, AIR 1956 Raj 185 (A), it was held there that

'the High Court should not interfere where any interference on its part is likely to place it in a position in which it is open to an inferior authority under the law to arrive at an opinion contrary to it.'

The election having taken place on the 26th April 1956, it was liable to be challenged under Section 19 before a District Judge, and this Court would not, in the circumstances, interfere on an application made even before the election was held on the application of one voter only.

10. We, therefore, dismiss the application with costs to opposite party No. 14 on whose behalf along a reply has been filed.


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