BHAICHANDBHAI MAGANLAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution for a writ of mandamus or any other appropriate direction order or writ for quashing and setting aside the election of the Councilors to the Municipality for the municipal district of Petlad held on 9th July 1962 and directing respondents Nos. 1 and 2 namely the State and the Collector to reconstitute the wards comprising the whole of the extended limits of the municipal district of Petlad and for a writ of quo warranto or a writ in the nature of quo warranto calling upon respondents Nos. 5 to 32 who are purported to be elected as Councilors at the election to state by what authority each of them claims to hold the office of a Councilor and restraining them from acting as such Councilors. The question arising in the petition is one of some importance but it does not admit of much doubt or debate and is relatively simple and easy of solution. But before we proceed to state the question and deal with it is necessary to mention briefly a few facts giving rise to the petition.

(2.) Prior to the extension of its limits on 11th October 1960 the municipal district of Petlad consisted of various survey numbers in the town of Petlad which were constituted into a Municipal district by the State Government under sec. 4(1) of the Bombay District Municipal Act 1901 By a Resolution dated 4th August 1953 the State Government in exercise of its powers under sec. 11 sub-sec. (1) clauses (a) and (c) determined the number of Councilors for the Municipality of this municipal district to be 28 and made rules prescribing the number and extent of the wards to be constituted in this municipal district the number of Councilors to be elected by each ward and the number of seats to be reserved in each ward for the representation of women and scheduled castes. Under the Rules so made the whole of the then existing municipal district was divided into seven wards and the number of Councilors to be elected by each of these wards was specified so as to make up a total of 28 Councilors for the entire municipal district. The last quadrennial election to the municipality in accordance with these rules was held sometime in 1958 and the term of office of the Councilors elected at this election was due to expire on 9th March 1962. In the meantime on 11th October 1960 a notification was issued by the State Government under sec. 4(1) extending the limits of the municipal district of Petlad by adding certain survey numbers specified in Schedule A to the notification. The result was that the area comprised in these additional survey numbers became part of the municipal district of Petlad. Now unless these newly added area was constituted into one or more wards or was included in any existing ward or wards no one resident in the newly added area could have a right to vote or to stand as a candidate at an election to the Municipality for the municipal district of Petlad and no such election could validly take place under the Act. The Municipality who is the fourth respondent before us therefore repeatedly requested the State Government to reconstitute the wards so as to cover the newly added area since the term of office of the existing Councilors was due to expire on 9th March 1962 and it would be necessary to hold an election to elect new Councilors. The State Government however did not take any steps to reconstitute the wards and pending consideration of the question of reconstitution of the wards the Commissioner by a notification dated 27th July 1962 extended the term of office of the existing Councilors upto 30th June 1962. The Municipality thereafter appointed a Special Committee to recommend how the newly added area should be incorporated in the existing wards but the Special Committee was unable to reach an agreement and the matter was therefore placed before a general meeting of the Municipality held on 30th January 1962. At this meeting an unanimous resolution was passed by the Councilors recommending to the State Government to incorporate the newly added area in the existing wards on the basis of geographical contiguity and a copy of the resolution was sent by the President of the Municipality to the Collector on 19th February 1962 for necessary action by the State Government. The State Government however failed to take any action in the matter and the President of the Municipality therefore addressed a letter dated 25 April 1962 reminding the Collector that the proposal of the Municipality to reconstitute the wards by including the newly added area in the existing wards on the principle of geographical contiguity was already forwarded to the Collector as far back as 19th February 1962 but it had not yet been finalised and pointing out that unless the wards were reconstituted the unfortunate result would be that the voters within the newly added area would be debarred from exercising their right to vote. But this consequence did not seem to perturb the State Government or the Collector for instead of reconstituting the wards the State Government directed the Collector to proceed with the election and the Collector accordingly issued a notice dated 30th April 1962 fixing the dates for the various stages of the election and notifying 9th July 1962 as the date for the holding of the election and the notice was published by affixing copies of it at the Municipal Office and other conspicuous places specified in the bye-laws on 1st May 1962 On receipt of the notice the President of the Municipality once again pointed out to the Collector by his letter dated 1 May 1962 that if the election were to be held according to the programme fixed by the Collector without reconstituting the wards the voters in the newly added area would be deprived of their right to vote and the entire election might on that account be held to be illegal involving the Municipality in heavy expenses and requested that the Collector should under the circumstances postpone the election and move the Commissioner to extend the term of office of the existing councilors upto 9th March 1963 or at any rate upto 31st December 1962 and in the mean time get the State Government to reconstitute the wards. This request which apart from the legal justification behind it which we shall presently discuss was based on a fundamental principle basic to democratic way of life that the people of every area governed by a political institution must have their elected representatives on such political institution did not evoke any response from the Collector and the State Government. The President of the Municipality was therefore constrained to address a letter dated 21st May 1962 to the Secretary to the Government General Administration Department pointing out that if the election was held without reconstituting the wards the voters coming within the newly added area would have no right to vote and that would create legal complications. There was no reply to this letter too and the President of the Municipality therefore ultimately wrote an express letter dated 30th May 1962 to the Collector requesting him to move the Commissioner and the State Government immediately by telegram the former to extend the time of office of the existing Councilors to a suitable date and the latter to reconstitute the wards in the meantime so as to enable the voters coming within the extended limits to exercise their vires during the ensuing elections. To these erratic requests and appeals of the President of the Municipality a reply dated 15th June 1962 was sent by the State Government stating that it was not possible to consider the proposal of the Municipality for reconstitution of the wards for the time being and to postpone the election and it was pointed out that this position headless been personally explained to the President of the Municipality when he had an interview with the Minister for Irrigation Department. The election was thereafter held on 9th July 1962 on the basis of the existing wards leaving out the newly added area and respondents Nos. 5 to 32 were declared elected by respondent No. 3 who was the Returning Officer at the election appointed by the Collector. The petitioner thereupon filed the present petition challenging the validity of the entire election and the right of respondents Nos. 5 to 32 to hold the office of a Councilor in the Municipality. During the pendency of the petition respondent No. 12 died and his name was accordingly ordered to be struck off the record and the petition proceeded against the remaining respondents.

(3.) The main ground on which the petitioner assailed the validity of the election was that the election was held in defiance of the provisions of the Act resulting in a part of the municipal district not being represented at all in the Municipality and the voters in that part not having any opportunity to express their views or to stand as candidates at the election and the election was therefore bad and liable to be set aside. The argument urged on behalf of the petitioner was that an election to a Municipality under the provisions of the Act could not be held unless the State Government first determined the number of Councilors of the Municipality under sec. 11 sub-sec. (1) clause (a) and made rules under sec. 11 sub-sec. (1) clause (c) prescribing inter alia the number and extent of the wards to be constituted in the municipal district and the number of Councilors to be elected by each ward and since in the present case the election was held without constituting wards comprising the whole of the municipal district as it stood after the extension of its limits the election was wholly invalidated. The petitioner agreed that under the rules made by the State Government by the Resolution dated 4th August 1953 the municipal district as it then existed was divided into seven wards but his grievance was that after the extension of the limits of the municipal district by the addition of the newly added area no reconstitution of the wards was made with the result that the newly added area was not constituted into any ward or wards nor did it form part of any ward or wards and it could not therefore be said that there were wards constituted for the whole of the municipal district as it existed at the date of the election and since the whole of the municipal district existing at the date of the election was not divided into wards by the State Government as required by sec. 11 sub-sec. (1) clause (c) and the election was held on the basis of the existing wards which left out of account the newly added area which formed part of the municipal district at the date of the election the election was contrary to the provisions of the Act and was no election at all. Respondents Nos. 1 to 3 submitted to the orders of the Court but the other respondents joined issue with the petitioner as regards the validity of this contention urged on behalf of the petitioner. They contended that so long as the election was held on the basis of the existing wards prescribed by the State Government under sec. 11 sub-sec. (1) clause (c) by its resolution dated 4th August 1953 the election was a valid election and no complaint in regard to the validity of such election could be made by the petitioner who was resident in the newly added area which did not form part of any of the existing wards. It was also urged by the fourth respondent Municipality that in any event the provision requiring the State Government to prescribe the number and extent of the wards to be constituted in each municipal district was a directory and not a mandatory provision and did not have the effect of nullifying the election held in breach of it. These were the two main contentions urged on behalf of respondents Nos. 4 to 32 on merits but in addition to these contentions certain contentions of a preliminary nature were raised on their behalf and we will first proceed to examine the validity of these preliminary contentions and then turn to consider the contentions on merits.