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TMI Blog1975 (3) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, not aware of the election programme fixed by the District Magistrate. As the Petitioner was keen to contest the election again, he, while he was at Allahabad, kept on making enquiries from the Suprintendent of the Government Printing Press as to whether any notification fixing the date for filing of nomination papers for contesting the election for the office of the President of the Municipal Board Soron, had been published. Every time, till the 25th September, 1974, he was informed that no such notification had so far been published. On 25th September 1974 the Superintendent of the Government Printing Press, informed him that a news item regarding filing of nomination paper for the office of the President of the Municipal Board, Soron had been received and it was being sent for printing. He also informed the Petitioner that till then no such news item had been published in the Official Gazette which could be delivered to any one. On 26th September, 1974 one Chob Singh of village Nijhpaton met the Petitioner and told him that the nomination for the office of the President of the Municipal Board Soron were to be filed by 26th September 1974, and that the election was goin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, invited the attention of the Bench to the case of Akhtar Husain v. District Magistrate Moradabad Sp. A. No. 87 of 1974 connected with Sp. A. No. 88 of 1974, D/- 5-4-1974 (Alld.). In that case it was held that in a case where sub-para (2) of paragraph 6 of the 1964 Order had been complied with non-compliance with the provision of sub-paragraph (1) of Paragraph 6 of the Order did not have the effect of vitiating the election procedure. He urged that in the present case it is apparent that the provisions of sub-para (2) of paragraph b' of the 1964 Order had been fully complied with. Accordingly, no case for interfering with or setting aside the election schedule had been made out. The Bench, however, felt that the decision of the Court in Akhtar Husain's case required further consideration. It accordingly admitted the writ petition and directed that the papers of the case be laid before Hon'ble the Chief Justice for constituting a larger Bench for hearing the case. 5. At the time of admission of the writ petition, learned Counsel for the Petitioner alto made a prayer that the election of the President, which was to take place on 1st October 1974, be stayed, However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office of the President owing to death, resignation or removal or due to the avoidance of election, the members of the board shall elect a President in the same manner as far as may be, as is provided in Section 43 and under Section 43-C for the election of President at a general election. Section 43 lays down that the elected members of the Municipal Board shall elect a President in accordance with the system of proportional representation by means of a single transferable vote and the voting at such election shall be by secret ballot. Section 43-C confers upon the State Government power to make orders providing for matters concerning the election of President. In exercise of its powers under Section 43-C, the State Government passed the U.P. Municipalities (Conduct of Election of President and Election Petitions) Order 1964, Paragraph 6 whereof reads thus: 6. Appointment of date for nomination etc. (1) As soon as may be after the election of members of a board is completed at a general election within the meaning of Section 43 of the Act or a casual vacancy occurs in the office of President of a Board, the District Magistrate shall by notification in the Official Gazette ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion had been published. It is, therefore, obvious that the notification, as required by sub-para (1) of paragraph 6 of the 1964 Older, was published after 24th of September 1974 and that the date fixed for filing the nomination as mentioned therein viz. 26th September 1974, was not a date which was at least four days after the date of publication of the notification. 10. Sri S.C. Khare, learned Counsel appearing for the Respondents contended that paragraph 6 of the 1964 Order envisages that first of all the D.M. is to make a notification fixing the election programme and thereafter that notification has to be published in the Gazette. Such notification comes into existence even before it is actually published in the Gazette and its date would be the date when it is actually made or signed by the District Magistrate. The date of the notification is not altered merely because it is sent for publication to the Superintendent of the Government Press and is actually published on a later date. In this case, the notification was sent to the Superintendent Government Press for publication on 13th of September 1974. The date of filing of the nomination paper was fixed as 26th September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was published on 24-9-1974. the date fixed for filing nomination papers (26th September) was not after four days of the date of notification and there has been a clear violation of the provisions of paragraph 6(1)(a) of the 1964 Order. 12. We now proceed to consider the effect of such non-compliance on the election held on 1-10-1974. Sri S.C. Khare relied on the Division Bench decision of this Court in the case of Aktar Husain v. District Magistrate Moradabad Sp. A. No. 86 of 1974, connected with Sp A. No. 88 of 1374, D/- 5th April 1974)(Alld.) and urged that the object underlying paragraph 6(1) of the Order merely is to give public notice of the election programme. Printing and publication under sub-para (1) is not the only mode in which the election programme fixed by the District Magistrate is to be published. Sub-para (2) of paragraph 6 prescribes the following modes for giving public notice of the election programme: (1) By affixation of a copy of the notice on the office of the returning officer. (2) By affixing of another copy at the office of the Municipal Board. (3) By despatching of copies by post to each member of the Municipal Board. (4) In any other ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refusal of a vote or for any non-compliance with the provisions of the Act or of any rules made under the Act; under Clause (b) thereof, the election of a candidate is to be set aside if it is either shown that his nomination has been wrongly included or that the nomination of some other candidate has been wrongly rejected, irrespective of the fact whether such inclusion or exclusion of nomination paper has or has not materially affected the result of the election. The nomination of a candidate can be said to be wrongly accepted or rejected only when the same has been accepted or rejected in a manner contrary to that laid down in the Act or the Rules or Order made thereunder, It follows that the policy underlying the U.P. Municipalities Act clearly is that the provisions contained in the Act, Rules or Order relating to the acceptance or rejection of nomination papers are to be construed as mandatory and any non-compliance with those provisions is to render the election invalid. It cannot be doubted that the provisions contained in paragraph 6(1) of the 1964 Order providing for fixing the date for filing of the nomination paper, their scrutiny and withdrawal are provisions relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution. When, on Petitioner's request for interim relief, this Court directed that the result of the election would be subject to the decision of the writ petition, it clearly implied that it permitted the election to take place only on the understanding that if it is found that there was merit in the writ petition and the writ petition is allowed, that election would be innocuous and without any effect. In these circumstances we feel that this Court should not refuse to exercise its extraordinary jurisdiction merely because another remedy by means of an election petition is available. In this view we derive considerable support from the observations of the Supreme Court in the case of Calcutta Discount Co. v. Income Tax Officer AIR 1961 SC 273 paras 28 to 31. 15. Further it is also debatable whether an election petition as provided for under Section 43-B(1) read alongwith Sub-section (2) would lie for challenging the election on the ground that the election programme had not been drawn up in accordance with law. It can be argued with considerable force that the provisions of Section 43-B(1) contemplate election petitions in cases where there has been an electio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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