MAKHDOOM KHAN Vs. DISTRICT MAGISTRATE, MORADABAD AND OTHERS

JUDGEMENT

(1.) The petitioner who is a resident of Sambhal district Moradabad, is an elector of the Municipal Board of that town. A motion of non-confidence was passed against the President of the Board, and as a result a casual vacancy occurred in the office of the President. The petitioner alleges that he intended to contest the election of the President, and was anxious to know the dates of the nomination of the election as notified under paragraph 6 of the U. P. Notified Area (Conduct of Election of Presidents and Election Petitions) Order, 1964. On inquiry from Sri Yashpal Saran Gupta, the Acting President, he wad informed that no Gazette Notification under paragraph 6 of the 1964. Order aforesaid had been received in the office so far, but that information of the election had been given to the members of the Board by a notice dated 20.10.1973 put in a written inquiry on the office of the District Election Officer, Moradabad, inquiring as to whether any Gazette Notification fixing the election programme had been received in his office. He received a reply to the effect that a Gazette Notification had been received in the office on 3.11.1973. Under this Gazette Notification of the 20th Oct., 1973, which purported to publish the order of the District Magistrate under paragraph 6(1) of the aforesaid order, the date for nomination was fixed, as 31.10.1973, and that for withdrawal 5.11.1973. Election was fixed for 6.11.1973 between 11 P.M. to 1 P.M. The petitioner avers that on account of the fact that this Gazette Notification was not available anywhere, upto 31.10.1973, the petitioner could not file his nomination paper. The petitioner now challenges the entire election proceedings and prays for a mandamus commanding the respondents not to hold the election of the President of the Board till such time that a proper Gazette Notification is not issued. By order dated 5.11.1973, the request for restraining the holding of the election was denied, but an order was vacated on 21.11.1973 and thereafter Akhtar Husain who had succeeded in the election has been made a party. Another Writ Petition No. 7499 of 1973 by one Mahesh Chandra was filed on 23.11.1973 for a writ of mandamus directing the respondents not to give effect to the result of the election, and for a writ of quo warranto calling upon Akhtar Husain to disclose the authority under which he purported to act as the President of the Municipal Board.

(2.) Counsel for the petitioner has contended that it was mandatory on behalf of respondent No. 2 to have notified the date of nomination, and the date of poll etc. by a proper Gazette Notification under paragraph 6 of the Election Order, and in as much as no such Gazette Notification was in existence till at least 2.11.1973, or in any event, the Gazette Notification was not available in the district till 3.11.1973. the election of the President held in violation of this mandatory provision was void and illegal. In the counter-affidavit filed on behalf of the respondent, it is stated that the District Magistrate passed an order on 11.10.1973 under para 6(1) of the Notified Areas (Conduct of Election of Presidents and Election Petitioner). Order, 1964 and sent copy of this to the Superintendent Printing and Stationery, U.P. for being printed in the U.P. Gazette on 20.10.1973. The order was duly published in the U.P. Gazette on 20.10.1973 and the date of the nomination and the date of poll were duly notified in this Gazette Notification. It is also stated that in compliance with the requirements of paragraph 6(2) of the aforesaid order, the District Magistrate published a notice in Hindi in form No. 1 and got a copy of it affixed in his office, another copy, in the office of the Municipal Board and the third copy on the Notice Board of the Tehsil, and despatched copies of the notice to all members which was posted under certificate of posting. This notice was posted on the notice board of the Collectorate, Tehsil and the Municipal Board on 20.10.1973. It is alleged that the Executive Officer of the Municipal Board got this information published by beat of drum on 24.10.1973. Notice is also said to have been published in the local newspapers "Auj Ki Kasht" in its issue of 14.10.1973. In the counter-affidavit filed on behalf of Akhtar Husain, respondent No. 3, it is averred in paragraph 13 of the counter-affidavit that the petitioner had discussed the matter with Sri Anzar Husain one of the members of the Board on 21-10-1973, as to the likely candidate for the office, and the chances of success of the acting President Sri Yashpal Saran Glipta. In the rejoinder-affidavit, the allegation that publicity was given to the dates of nomination and poll is denied. It is asserted that the notification in question although it purports to be of 20-10-1973 was in fact printed, published and made available for sale at the Government Press, U. P. Allahabad only on 31-10-1973. It will be now useful to extract paragraph 6 of the U. P. Notified Areas (Conduct of Election of Presidents and Election Petitions) Order 1964:--

(3.) Now in the present case, a notification in the official Gazette was published giving the particulars required by paragraph 6(1) of the U. P. Notified areas order 1964. It has also been seen that it has been averred in the counter-affidavit that due publicity was given to the dates of the nomination etc. as required by paragraph 6(2) of the order, although the fact that requirements of paragraph 6(2) where fully complied with is denied by the petitioner. It is however not possible to grant relief to the petitioner on this ground as it is a disputed question of fact.