1967 Supreme(MP) 83

High Court of Madhya Pradesh
P.V. Dixit, C.J. & R.J. Bhave, J.
Raghuvans Prasad
Vs.
Mahendra Singh
M.P. No. 169 of 1967
Decided on : 18.9.1967

Headnote:(1) Municipalities Act, 1961 (M.P.) - Ss. 43 & 55 (2) - election President and Vice Presidents - time limit prescribed in section (2) (b) not followed - authority prescribed in section 55 (2) not calling the meeting within me month of the expiry of the terms of office of outgoing President and Vice-Presidents - council not to be blamed-election not void on account of delay Interpretation of statutes - conditions rendered impossible to follow by other persons - condition dispensed with.

       (2) Interpretation of statutes - statutory formalities and requirements - rendered impossible by act of other agency not under control of the persons enjoined to fulfil -performance of such formalities and requirements dispensed with.

       S. 43 (2) (b) of the Act requires that on the expiry of the term of office of the President and Vice-Presidents the council at a meeting convened for the purpose within one month thereof elect new President and Vice-Presidents. Under S. 55, the Collector or Sub-Divisional officer is the prescribed authority for calling such meeting. The prescribed authority did not call the meeting within one month of the expiry of the term of office of tile President and Vice-Presidents, but called it beyond the prescribed time. The election was challenged on the ground that the statutory time limit prescribed in section 43 (2) (b) was not complied with.

       Held: It is well settled that if a statute imposes a duty on a person or a body to be carried out when certain formalities or requirements are fulfilled and if the performance of those formalities or requirements is rendered impossible by circumstances over which the person has no control, then the noncompliance with the formalities or requirements can be excused. [Para 5]

       On the application of these principles, it must be held that when the Collector convened a meeting beyond the time prescribed by section 43 (2) (11) then the election by the Council of the President or Vice-Presidents at such a meeting is not rendered invalid. In these circumstances the time-limit condition prescribed by section 43 (2) (u) cannot be considered as being indispensable. It must be noted that sub-section (3) of section 43 does not come into play if the competent authority failes to convene a meeting for the purpose of electing new President and Vice-Presidents within the time prescribed by section 43 (2) (b). [Para 6]

       (3) Municipalities Act 1961 (M.P.) - Ss. 55 (3) 56 (3) & 43 (2) (c) - meeting for election of President & Vice – Presidents - mandatory provisions of section 56(3) should be followed-seven clear days notice of the meeting should he given - method of computing the period of seven days - both criminal days, to be excluded - election had in meeting commenced on a notice not giving seven clear days' - is illegal - Municipalities (President and Vice Presidents) Election Rules, 1962 (M.P.) - R. 3.

       (4) Election - process of - when commences.

       The notice of the meeting convened by the Collector for election of President and Vice-Presidents was dispatched on 31st March 1967. The election meeting commenced on 7th April 1967 on which nomination papers were filed and the election was held on 8th April 1967. The election of the President and Vice-Presidents was challenged on the ground that it was held in a meeting not giving clear seven days notice.

       Held: The election meeting clearly commenced on 7th April 1967, the date fixed for the filing of the nomination papers and their scrutiny, for it was on that date that the process of election commenced. AIR 1952 SC 64 relied on.

       The provision a bout seven clear days' notice for the meeting is a mandatory one and in the computation of that period both the terminal days have to be excluded. ILR 1955 Nag. I relied on.

       It is thus clear that the mandatory provision contained in section 56 (3) about seven clear days notice of the meeting was not complied with.

       It is true that rule 3 of the M.P. Municipalities (President and Vice Presidents) Election Rules, 1962, which provides that the presiding authority shall specify in the notice of the meeting the time and place so fixed, is silent about the period of notice for the meeting at which the election is to be held, But this rule does not in any way over side section 56 (3).

       The election meeting held on 7th April 1967 was invalid and so also was the election held at that meeting which continued even on 8th April 1967. That election held on these meetings declared to be invalid. [Para 9]

       (5) Municipalities Act, 1961 (M.P.) - S. 40 (1) - resignation of a councilor should be tendered to the President - resignation tendered to the Chief Municipal Officer - is inoperative.

       (6) Words and Phrases - 'tender' - meaning of.

       Section 40 (1) requires a Councilor desiring to resign his office to do so "by tendering his resignation in writing, to the President."

       'To tender' means 'to make a formal offer.' A Councilor may offer his resignation in writing to the President personally, or he may convey that offer to the President through post or by a messenger. Where the writing containing the resignation is sent by post or by a messenger it should at least be addressed to the President in order to make it a valid resignation under section 40 (1).

       A communication addressed to the Chief Municipal Officer and sent to him cannot operate as a resignation of the Councilor. [Para 11]

       (7) Municipalities Act, 1961 (M.P.) - S. 20 - person not candidate for the election of President or Vice President - cannot challenge such election – may challenge it by a writ petition - Constitution of India - Art. 226.

       Under section 20 (2) of the Act, an election petition can be presented on one or more of the grounds specified in section 22 by any candidate at such election or selection. Where the election of a President or Vice President is challenged, a person who was himself not a candidate at such election cannot file any election petition questioning the election. That being so such person may challenge the election under Art. 226 of the Constitution. [Para 12]