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High Court Of Madhya Pradesh
P. V. Dixit, C. J. and K. L. Pandey, J.
HAFIZ MOHAMMAD ANWAR KHAN - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Misc. Petn. 29 Of 1965
Decided On : 09/03/1965
Any reduction in the period of limitation prescribed by a statutory rule is not permissible. Rule 4 (2) permits that objections may be filed within thirty days; and, even if the Collector endeavoured to curtail this period, the objectors were nevertheless entitled to avail of the entire period of 30 days.
If the competent authority wrongly rejected the objections filed within the statutory period but beyond the curtailed period fixed by the Collector, the objectors could have appealed against those orders under Rule 5. They could have chosen the alternative of promptly moving the High Court under Art. 226 of the Constitution for quashing the programme of election. 1961 JLJ-SN 558 referred to.
But where the objectors did not adopt any of the above courses, neither they nor anyone else can after the election is held be permitted to call in question the election which was allowed to be held perhaps in the hope that it would be favourable to the petitioners.
As the defect is not such as strikes at the root of the election, the High Court declined to interfere after the election was held. [Para 10]
(2) Municipalities Act, 1961 (M.P.) - S. 32 - division into wards - Government instructions - deviation from - not a ground for issuance of writ of quo-warranto -Constitution of India - Art. 226.
An election was sought to be quashed on the ground that the de vision of the municipal area into wards was done in disregard of Government instructions. Public notice for inviting objections was issued before making the wards final and no body objected. It was too late to complain against the actual division of the municipal wards. Besides, deviation from administrative instructions did not furnish a valid ground for issuance of a writ of quo warranto. [Para 8]
(3) Municipalities (Preparation of Electoral Rolls etc.,) Rules, 1962 (M.P.) - R. 3 (2) -powers of the Collector - may employ persons for preparing and revising rolls - cannot delegate duty of preliminary and final publication of rolls.
Under Rule 3 (2), the Collector is competent to employ such persons as he thinks fit only for the purpose of preparing and revising the rolls upto the stage of preliminary publication and no more. He has no power to delegate to anyone the duty of making preliminary and final publication of the rolls which he causes to be prepared or revised. [Para 11]
If the electoral rolls are authenticated and published by the Tahsildar and not by the Collector, the election held on their basis is void. [Para 12]
(4) Election - electoral rolls - are basis of election - must be prepared in accordance with law - election held on basis of rolls prepared in contravention of law - is vitiated.
For holding election it is essential that the electoral rolls must be prepared in compliance with the relevant provision of law under which the elections are held. The electoral rolls are the foundation of the elections. If the electoral rolls are not prepared in accordance with the provisions of the relevant Act and the Rules, the election will not be valid. AIR 1957 SC 304, AIR 1958 Pat 149, AIR 1959 Cal. 548, AIR 1955 Nag. 49 relied on. [Para 12]
(5) Constitution of India - Art. 226 - writ of quo-watranto - delay or estoppel - no question arises where election is held on the basis of invalid electoral rolls.
If the election is held on the basis of electoral rolls which are invalid, being authenticated and published by the Tahsildar and not by the Collector, the failure of the petitioner to move the High Court for appropriate relief before the election is immaterial as the relief claimed in challenging ejection was in the nature of a writ of quo-warranto and in such case there is no question of delay or estoppel. ILR 1961 (2) Punj 800, AIR 1957 SC 304, AIR 1958 Pat. 149, AIR 1959 Cal. 548 and AIR 1955 Nag. 49 relied on. [Para 13]
( 1 ) THIS petition under Article 226 of the Constitution is directed against the election of the respondents 6 to 12 as councillors of the Municipal Council, khairagarh, and also against the selection of the respondent 13 as such councilor.
( 2 ) SINCE common questions of law arise, this petition and two other like petitions namely Ramdas v. Municipal Council, Sausar, Misc. Petn No. 53 of 1965 D/- 3-91965 (MP) and Baisanath Prasad v Collector, Morena. Misc. Peln No 117 of 1965 d/- 3-9-1965 (MP), have been heard together. In Misc Petn. No. 53 of 1965 D/- 39-1965 (MP ). the election of the respondents 2 to 10 and the subsequent selection of the respondents 13 and 14 (as named therein) as councillors of the Municipal council. Sausar, have been called in question. In the other petition, the election of the respondents 2 to 8 and the selection of the respondent 9 (as named therein)as councillors of the Municipal Council, Jora, have been challenged. This order shall dispose of the other two petitions also.
( 3 ) THE facts giving rise to this petition (29 of 1965 ). briefly stated are these. In order to hold a general election for the Municipal Council Khairagarh, a programme was drawn up and signed by the Additional Collector, Durg, on 10 June 1964 A copy of that programme with instructions, was forwarded to the Tahsildar, khairagarh, who was also appoinled to he the Supervising Officer. On 20 June 1964, the Tahsildar-cum-Supervising Officer gave public notice of the preliminary publication and, in pursuance thereof public intimation was given on 25 June 1964 inviting claims and objections within 30 days. Following this, on 18 August 1964 the Tahsildar-cum-Supervising Officer himself finally publisked the electoral rolls under his own signature. But, by an order dated 22 August 1964, the State government postponed the general election with the consequence that, in accordance with a revised programme, the poll was held on 12 December 1964. According to the petitioners, who are voters and one of whom is a sitting member of the Municipal Council. Khairagarh, the respondents 6 to 13 do not, and cannot claim to, lawfully hold the office of councillors of the Municipal Council, Khairagarh, mainly because the election of the respondents 6 to 12 was made on the basis of the electoral rolls prepared by an authority other than the one designated by law to do so. As provided by Rule 3 (1) of the Madhya Pradesh Municipalities (Preparation, Revision and Publication of Electoral Rolls, Election and Selection of councillors) Rules, 1962 (hereinafter called the Rules), the Collector had to prepare and revise the rolls. Further, by Rule 4, he alone had to give public notice of the preliminary publication and also to make in due course, as required In the rules, final publication of the rolls. In the inslant case, all these steps were taken by the Tahsildar-cum-Supervising Officer. The petitioners further say that there was in this case a disregard of Section 32 (3) of Ihe Madhya Pradesh Municipalities act. 1961 (hereinafter called the Act) in that the electoral rolls were not revised six months before the date on which the poll was actually held Since the rolls were not so revised, the election held on 12 December 1964 was vitiated. ( 4 ) THE facts of Misc. Petn. No. 53 of 1965 D/- 3-9-1965 (MP) are these Prior to the last general election, the territorial area under the jurisdiction of the Municipal council, Sausar. was divided into 10 wards In or about May 1964, the area called sausar Gramin was transferred to Kuddam Grain Pan chayat. Thereafter, by an order of the Slate Government dated 1 June 1964. the remaining area was divided into 9 wards the petitioner, who is a voter residing in Ward No. 1 of the municipality, alleges that the actual division of the area into wards did not conform to the instructions to the effect that there should be within permissible limits, even distribution of voters in the different wards. Further, the ele
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