1971 Supreme(MP) 24

High Court Of Madhya Pradesh
Shiv Dayal and S. M. N. Raina, JJ.
RAJENDAR SINGH - Appellant
Versus
N.K.SHEJWALKER - Respondents
Misc. Petn. 59 Of 1970
Decided On : 02/16/1971

Headnote:(1) Municipal Corporation Act, 1956 (MP) -S.23-mecting for the election of Mayor- is to be held on the expiry of the term of the outgoing Mayor-meeting held during the tenure of such Mayor-is premature-provisions not mandatory-election not a nullity only on this ground.

       The Mayor and Deputy Mayor were elected on March 22, 1969. A meeting to elect next Mayor and Deputy Mayor was held on March 20, 1970. The validity of this meeting was challanged.

       Held: Sub-section (1) of section 23 of the Act makes it abundantly clear that the meeting for the purposes of election will be the first meeting each• year. But when read with the Explanation it means that the election of the Mayor and the Deputy Mayor must be held at the first meeting to be held after the expiry of twelve months computing from the date of the first meeting after the general election.

       In other words the election to the office of Mayor or to the office of Deputy Mayor cannot be held for the ensuing year at the last meeting or an earlier meeting of the year. It must, therefore, be held that the meeting which was held on March 20, 1970, was premature. A meeting for the election of the Mayor and the Deputy Mayor had to be held after March 21, 1970 but not before that date. [Para 5

       But the provisions are not mandatory, and the elections held in such premature meeting are not nullified as the provisions were substantially complied with. 1968 JLJ 1100, 1968 JLJ 125, AIR 1965 SC 893 & AIR 1963 SC 1417 relied on. [Paras 8 & 9

       (2) Municipal Corporation Act, 1956 (MP)-S. 51-scope of-protects the 'acts' and 'proceedings' in a meeting-the very election of the Mayor challanged - protection whether available-question left open. [Para 10

       (3) Constitution of India-Art. 226-complicated question of fact should be left for decision in election petition. [Para 11

       (4) Municipal Corporation Act, 1956 (MP)-S. 33-Mayor also a candidate for election of Mayor for next term - meeting, has to be presided by the Mayor-procedure laid down in the law should be followed-principles of natural justice cannot override the letter of law.

       (5) Natural justice-principles of-cannot override provisions of law.

       There can be no doubt that n e principles of natural justice required that the presiding officer if he himself was 'the candidate at the election' could not decide objections raised to his own nomination. The legal maxim is nemo debet esse judex in propria causa. But under section 33 of the Act it was not permissible for any one else to preside without violating the statutory provisions.

       The aim of the principles of natural justice is as to secure justice or to prevent miscarriage of justice, but the rules of natural justice cannot override the statutory provisions; they can only operate in areas not covered by any law validly made. AIR 1971 SC 40 & AIR 1970 SC 150 relied on. [Para 12

       But there is no conflict between the statute and the principles of natural justice in the present case because a person who is a Mayor for the time being is not eligible for further election. [Para 13

       (6) Municipal Corporation Act, 1956 (M.P.) –S. 23 (4)-election of Mayor-eligibility of the present Mayor for election as Mayor for next year arises only when he ceases to be a Mayor after expiry of term -not eligible for election as Mayor before expiry of his term-person ineligible on date of election-the election a nullity-cannot be allowed to hold office because he became eligible after the election.

       The term of Mayor was to expire on March 22, 1970. In a meeting held on March 20, 1970 he was again elected Mayor.

       Held: As enacted in sub-section (4) of section 23 of the Act the Mayor, whether he is a councillor or is deemed to be a councillor by virtue of sub-section (6), has to cease to be the Mayor so as to be eligible for further election to that office. So long as he continues in that office he is not eligible for further election to that office. [Para 14

       If the person elected was un-eligible for being elected a Mayor on the date of the election, the election is a nullity. He cannot be allowed to hold office because he has become eligible. AIR 1955 Tra. Co. 42 relied on. [Para 15

       (7) Election-person elected not eligible on date of election-the election is a nullity-such person becoming eligible after the election cannot be allowed to hold the office. [Para 15

       (8) Municipal Corporation Act, 1956 (M.P.)-S. 441 - remedy of election petition available -High Court when may grant or refuse a writ.

       (9) Constitution of India-Art. 226-election matter-alternative remedy of election petition-effect on powers of the High Court-a writ of certiorari when may be issued.

       Regarding the question whether the High Court should interfere in an election when an alternative remedy is available under section 441 of the M. P. Municipal Corporation Act, 1956, the law is :-

       (i) A writ of quo warranto is issued when a person usurps a public office or is otherwise unfit to hold it. The alleged usurper is called upon to show or prove his authority to hold the same. If he is unable to show or prove such an authority he can be ousted and restrained from functioning in the office, which he has unlawfully usurped and intruded into or is unlawfully holding. This writ is an old judicial remedy against an occupier or usurper of a substantive public office, franchise or liberty.

       (ii) The essential conditions for issuance of a writ of quo warranto in respect of an office are :-

       (a) the office must be public;

       (b) the office must have been created by the Constitution or by Statute;

       (c) the office must be of a substantive character; and

       (d) the occupier of office must not be legally qualified to hold or to remain in that office or must not have been appointed in accordance with law.

       (iii) The existence of an alternative, adequate or suitable remedy is per se not an absolute bar to a writ of quo warranto being issued. The High Court is generally reluctant to issue that writ against the successful candidate in respect of an elective office. When there is such an alternative remedy to deal with the conduct of an election, a writ of quo warranto may be displaced, and the election may be challenged in the manner laid down by the statute. However, that is merely a material circumstance to be taken into account having regard to the facts of each case.

       (iv) It is incontestable that the High Court has under Art. 226 of the Constitution, power to determine the validity of an impugned election in a proceeding for a writ of quo warranto or other suitable writ or direction. Therefore, notwithstanding the provisions for an alternative remedy, i. e. by way of an election petition, the High Court has the discretion to issue a writ of quo warranto.

       (v) The existence of an alternative remedy does not bar the jurisdiction of the High Court to issue a writ of quo warranto, although in appropriate cases quo warranto may be refused on the ground of existence of an alternative remedy.

       (vi) The discretion whether to grant or to refuse a writ of quo warranto has to be exercised in accordance with sound judicial principles.

       (vii) Where an election is held in breach of imperative provisions of the law so that the election is not an election in the eye of law, this High Court would not refuse to issue a writ of quo warranto

       (viii) A quo warranto will not be issued in a case of mere irregularity which can be cured.

       (ix) In proceedings for a writ of quo warranto the petitioner does not seek to enforce any right of his own as such, nor complains of any non-performance of any duty towards him. It is the right of the respondent to hold the office which is in question. The test to be applied is whether there has been a usurper of an office of a public nature and substantive in character. [Para 17