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High Court Of Delhi
R.M.BAGAI - Appellant
Versus
UNION OF INDIA - Respondent
Civil 5792 of 1993
Decided On : 01/13/1994
CONSTITUTION (Seventy Fourth Amendment) ACT 1992 - Article 243 U — provision to hold elections within six months from the date of dissolution-applicable on Municipalities already dissolved- Election must be heid within-six months except where it is impossible to do so.
Held:
It is true that the Constitution or the provisions of the Delhi Municipal Corporation Act particularly Section 490 have not laid down any penal consequences for not holding the elections to the Municipal Corporation within six months or within reasonable time but it cannot be said that the court can ignore the mandate of the Constitution and hold that such direction given in the Constitution that the elections must be held within six months of the dissolution of the municipal corporation is merely directory. It is possible that due to certain circumstances beyond human control a particular mandate provision may not be capable of being complied yet for that reason alone it cannot be said that there is no such mandatory provision for holding election to the Municipality or Corporation within a particular period. In the present case the Municipal Corporation stood dissolved since many many years and the amended Constitution has made its intention very clear that election must take place within six months of the expiry of the dissolution. It is evident that in respect of already dissolved municipal bodies the election must take place within six months of the enforcement of the constitutional provision. A Constitution Bench of the Supreme Courf in the matter of Presidential Election, AIR 1974 SC 1682, in para 13 had held that in determining the question whether a provision is mandatory or directory, the subject-matter, the importance of the provision, the relation of that provision to the genera) object intended to be secured by the Presidential and Vice Presidential Elections Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get at the real intention of the legislature by carefully attending to the whole scope of the provision to be construed. It was held in pa.ra 15 that the impossibility of the completion of the election to fill the vacancy in She office of the President before the expiration of the term of the office in the case of death of a candidate as may appear from Section 7 of the 1952 Act docs not rob Article 62(1) of its mandatory character. It was laid down that the maxim of law impotentia excusat legem is intimately connected with another maxim of law lex nom cogit ad impossibilia. Impotentia excusal. legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. It was held that where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.
( 1 ) THIS writ petition has been brought for issuance of writ of mandamus requiring the respondents to immediately and forthwith revise and up-to-date the electoral rolls of Delhi before the elections to the Municipal Corporation of Delhi are held in Feburary 1994.
( 2 ) THIS petition was filed on December 23, 1993 and on the following day the notice to show cause had been issued and the respondents were restrained from issuing any notification regarding holding of any elections for Municipal Corporation of Delhi till the next date of hearing i. e. January 5, 1994. Before that date the respondents moved an application C. M. 9458/93 for vacation of the stay order and on December 31, 1993, the court directed for issuance of notice to the petitioner for 2 P. M. on the same day and then the learned Vacation Judge vide order dated December 31, 1993, permitted the respondents to issue the notifications for holding the elections but made it clear that issuance of such notifications would be subject to the result of the writ petition.
( 3 ) ON December 30, 1993, a notification had been issued by the Administrator of the National. Capital Territory of Delhi by which he determined the number of wards 276 as 134 and also the extent of each of these wards as contained in table A annexed with the notification. On the same date another notification was issued by the Election Commissioner for the National Capital Territory of Delhi under sub-section (6) of Section 3 of the Delhi Municipal Corporation Act, 1957, as amended by Act 67 of 1993 (for short the Act ) by which the seats reserved for scheduled castes and for scheduled castes women and for women in general category were detailed out.
( 4 ) A notification under Section 11 of the Act was issued by the Election Commissioner for holding general elections to the Municipal Corporation of Delhi and another notification was issued on December 31, 1993, under proviso to sub-section (1) of Section 7e of the Act by which the Election Commissioner ordered that the electoral rolls of the Delhi Assembly Constituencies, for the time being in force, as related to the wards shall be the electoral rolls of the wards of. general elections to be held thereafter.
( 5 ) A spate of writ petitions have been filed challenging the aforesaid notifications. For the present we have heard the arguments in this petition and have heard counsel who have raised similar challenges in other writ petitions as well. Following propositions have been urged on behalf of counsel for the petitioners in challenging the various notifications, firstly, that notification issued under proviso to sub-section (1) of Section 7e of the Act is not in consonance with the provisions of Law inasmuch as there has been complaints in large number regarding the veracity of the electoral rolls prepared for the holding of the Delhi Assembly Elections which were held in November 1993 and that this notification had been issued without application of mind and does not give any reasons for adopting such defective electoral rolls prepared for the Assembly Constituencies. The challenge to the notification issued under Section II by which the General Elections had been called is two fold that no electoral rolls of the wards have been yet finalised and the law requires that such electoral rolls be in existence before any notification is issued for calling the general elections and the said notification also is bad inasmuch as no dates of elections have been incorporated in that notification which was the mandate of the provision of Section 11 itself. *
( 6 ) THE first question to be decided in the present case is whether the respondents were legally right in issuing the notification under proviso to sub-section (1) of Section 7e of the Act for adopting the electoral rolls of the Assembly Constituencies for holding the general elections to the Municipal Corporation of Delhi.
( 7 ) OUR democratic system adopted in the Constitution of In
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