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2007(1) JLJ 20
Deepak Verma and Dipak Misra, JJ.
Bharti Batham v. State of M.P. and another
Writ Petition No. 10505 of 2005 (Jabalpur); Decided on 2.5.2006.
Petitioner has sought for declaration of subd`rule (2) of rule 19 of Madhya Pradesh Municipal Corporation (Election Petition) Rules, 1963 (hereinafter referred to as ‘the Rules‘) as altra vires the Municipal Corporation Act, 1956. [Para 1
Held: We do not perceive that the said provision has been utilized to extend the scope of the general operation of the Act. It is not such a provision by which what has been excluded in the Act has been included in the Rules. The statute provides for filing of a revision under section 441-F. Rule 19(2) only provides for deposit of security for the costs of the revision. Such a stipulation does not run contrary to the provisions of the statute. There is a purpose behind the same. It has nexus with the statute. It is, in a way, necessary to ensure not to have frivolous revisions. It cannot be said that it is unnecessary for giving effect to the purposes of the Act. It is extremely difficult to opine that the said condition is alien to the enactment. Indubitably such a condition, a requisite postulate, can be encapsuled within the ambit and sweep of the power that has been conferred on the authority under section 433 of the Act. Ergo, we have no hesitation in holding that rule 19(2) of the Rules is intra vires. 1992 JLJ 545 (SC) distinguished. (1985)2 SCC 116, AIR 2004 SC 1896 and AIR 2001 SC 2861 followed. 1995 MPLJ 728 relied on. [Para 21
uxjikfyd fuxe ¼fuokZpu vthZ½ fu;e] 1963 ¼e-iz½ && fu- 19¼2½ && e-iz- uxjikfyd fuxe vf/kfu;e] 1956 && /kkjk 433] 441&x rFkk 441&x rFkk 441&p fu;e 19 ¼2½ ds v/khu iqujh{k.k ds fy, izfrHkwfr dh Hkk¡fr #- 250@& ds fu{ksi ds fy, mica/k && ‘kDR;k/khu gS && blds ihNs mÌs‘; vf/kfu;e ds mica/kksa dk ikyu djuk gS && fu;eksa dk vf/kfu;eu lkekU; ‘kfDr ds v/khu fd;k x;k gSA
;kph us e-iz- uxjikfyd fuxe ¼fuokZpu vthZ½ fu;e] 1963 ¼e-iz-½ ¼,rfLeu~i‘pkr *fu;e* dh Hkk¡fr fufnZ"V½ ds fu;e 19 dk mifu;e ¼2½ dks uxj ikfyd fuxe vf/kfu;e] 1963 ds vf/kdkjkrhr ?kksf"kr fd, tkus dh bZIlk gSA
¿ iSjk 1À
vfHkfu/kkZfjr % ge ugha le>rs fd mDr mica/k dk mi;ksx] vf/kfu;e ds lkekU; izorZu ds foLrkj ds fy, fd;k x;k gSA ;g ,slk mica/k ugha gS ftlds }kjk fu;eksa ls og varfoZ"V dj fn;k x;k gS tks vf/kfu;e esa vioftZr gSA dkuwu dh /kkjk 441&p ds v/khu iqujh{k.k Qkby fd, tkus dk mica/k fd;k x;k gSA fu;e 19¼2½ esa dsoy iqujh{k.k ds [kpsZ ds fy, fu{ksi dk mica/k gSA ,slk vuqca/k dkuwu ds mic/akksa ds foijhr ugha gksrkA mlds ihNs iz;kstu gSA mldk dkuwu ds lkFk laca/k gSA ,d izdkj ls] ;g vlkj iqujh{k.k ugha gks] ;g vf/kfu;e ds iz;kstuksa dks izHkkoh djus ds fy, vuko‘;d gSA ;g jk; nsuk vR;ar dfBu gS fd mDr ‘krZ vf/kfu;fefr ds izfrdwy gSA vlafnX/k :i ls] ,slh ‘krZ] ,d vko‘;d vk/kkj&rRo] vf/kfu;e dh /kkjk 433 ds v/khu izkf/kdkjh dks iznÙk ‘kfDr dh lhek vkSj foLrkj es laiqfBr tk ldrh gSA blfy, ;g vfHkfu/kkZfjr djus esa gesa dksbZ fgpd ugha gS fd fu;eksa dk fu;e 19 ¼2½ ‘kD;k/khu gSA 1992 ts ,y ts 545 ¼mPpre U;k-½ izHksfnrA ¼1985½ 2 ,l lh lh 116] , vkb vkj 2004 ,l lh 1896 rFkk , vkb vkj 2001 ,l lh 2861 vuqlfjrA 1995 ,e ih ,t ts 728 voyafcrA ¿ iSjk 21À
Misra, J.-- 1. In invocation of the extraordinary and inherent jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner has sought for declaration of sub-rule (2) of rule 19 of Madhya Pradesh Municipal Corporation (Election Petition) Rules, 1963 (hereinafter referred to as 'the Rules') as altra vires the Municipal Corporation Act, 1956 (for brevity 'the Act').
2. The requisite facts which are imperative to be stated for the appreciation of challenge by the petitioner are that the petitioner was elected as a Councilor of Ward No.35 of the Municipal Corporation Bhopal, and his election was notified on 7.12.2004 as per Annexure P-l. One Naffees Qureshi called his election in question under section 441 of the Act, before the learned II Additional District Judge, Bhopal in Case No. 5 A/2005 and the said Election Tribunal by order dated 2.7.2005 allowed the election petition as a consequence of which, the election of the petitioner was set at naught.
3. Being dissatisfied with and aggrieved by the aforesaid order the petitioner preferred Revision No. 437/05 under section 441-F of the Act on 8.7.2005. At the time of presentation of the Revision Petition, the petitioner had not deposited the security amount of Rs.250/- but did so thereafter. The opposite party to the Revision Petition raised the issue of maintainability on the ground that the amount having not been deposited as required under the Rule, the Revision Petition deserved to be dismissed. As is manifest, nothing has been mentioned as to what has happened to the Revision Petition. The present petition has been filed assailing the constitutional validity of the rule in question.
4. It is contended in the petition that section 441 of the Act provides for presentation of Election Petition and section 441-B provides for decision of the Election Petition. Sub-section (2) of section 441-F provides for finality of decision. It is contended that a set of rules have been framed in exercise of power conferred under section 433 read with section 441-C of the Act and in sub-rule (2) of rule 19, a provision has been incorporated that at the time of presentation of the petition for revision, the petitioner shall deposit with the High Court a sum of Rs.250/- as security for the costs of the revision and if the provisions of the rules are not complied with, then the High Court shall dismiss the Revision Petition. It is urged that rule 19 framed by the respondent is without any competence as it suffers from excessive delegation inasmuch as there is no provision in the Act empowering the authority to make such rules and in the absence of conferral of such power, the said rule is vitiated being in transgression of the provisions of the Act.
5. We have heard Mr. Shekhar Sharma, learned counsel for the petitioner and Mr. R.S. Jha, learned Deputy Advocate General for the respondent State.
6. It is contended by Mr. Shekhar Sharma that section 441 of the Act, which deals with Election Petition, provides for limitation and deposition of security deposit but section 443-F that provides for a revision to be filed before the High Court, does not make any stipulation for payment of any security deposit and in the absence of such a postulate the same cannot be introduced in the rules. Learned counsel has further put forth that rule 19 of the rules which provides for such security amount to be deposited is beyond the rule making power inasmuch as such a power has not been conferred by the Act and further the provision which enables the State Government under section 433 of the Act to make rules, does not encompass/cover such requirement. It is highlighted by Mr. Sharma that a rule can be sustained if it does not supplant the Act and further is in consonance with the rule making power.
7. Mr. R.S. Jha, learned Deputy Advocate General, resisting the aforesaid submissions, contended that the conception of excessive delegation is not attracted to the case of the present nature
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