Judgement

ALAGIRISWAMI, J.:- To fill up a casual vacancy in the office of the President of the Municipal Board, Soron in the district of Etah in Uttar Pradesh, the District Magistrate issued notices to the members of the Board informing them that nomination papers should be filed in his office by 26th of September 1974 and if necessary the election will take place on 1st October, 1974. The 1st respondent thereupon filed a petition under Article 226 of the Constitution challenging the validity of the procedure adopted by the District Magistrate for holding the election and prayed for an order to the District Magistrate not to hold the election on 1st October, 1974. The election programme had been notified in the U. P. Gazette dated 21-9-74 but it was published in the Gazette dated 24-9-74,

2. The objection to the procedure for election was based on the allegation that it did not conform to the provisions of Rule 6 of the U. P. Municipalities (Conduct of Election of Presidents and Election Petitions) Order, 1964 which reads as follows:

"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, appoint for the election to the office of President of the Board:

(a) the date for making nominations which shall be a date at least four days after the date of notification; and

(b) the date for scrutiny of nominations which shall be the date next following the date fixed under clause (a); and

(c) the last date for withdrawal of candidatures which shall be the, third day after the date fixed for scrutiny of nominations and

(d) the date on which and the hours during which a poll shall, if necessary, be taken:

provided that the date for taking the poll shall be a date not more than five days after the last date fixed under clause (c).

(2) On the issue of notification under sub-para (1), the Returning Officer shall give public notice of the election in Hindi in Form I by affixing a copy of the notice at his office and another copy at the office, of the Board and in such other manner, if any, as he may think fit and shall also cause to be dispatched by post under certificate of posting a copy of the notice to the last known address of each member."

Though there was a prayer in the writ petition for an order to the District Magistrate not to hold the election on 1-10-74, the learned Judges who admitted the writ petition directed that the election would be subject to ultimate decision in the writ petition Consequently the election took place on the 1st of October and the 1st appellant was declared elected. Thereafter the 1st respondent filed an application for impleading the 1st appellant and the Municipal Board as parties and also claimed a further relief for quashing the election proceedings that took place on the 1 st of October, 1974. The learned Judges allowed the petition and set aside the entire election proceedings relating to the election of the 1st appellant as the President of the Municipal Board.

3. We are of the opinion that the whole approach of the learned Judges of the High Court to this problem was mistaken. After the decision of this court in N. P. Ponnuswami v. Returning officer, Namakkal constituency. (1952) 3 SCR 218 there is hardly any room for Courts to entertain application under Article 226 of the Constitution in matters relating to elections. Before dealing with this question we may set out Section 43-B of the U. P. Municipalities Act which is the provision of law dealing with cases where the election of the President is questioned:

"43-B. Judicial Officer to decide the question of validity of election to the office of President

(1) No election of the President shall be called in question except by an election petition presented in accordance with the provisions