BHARTI BATHAM Vs. STATE OF M.P.

JUDGEMENT

(1.) 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, as rule 19(2) falls within "general rule making power" as it lays down a condition which is permissible to be provided under the rules. The learned counsel for the State submitted that the deposition of security amount may not have been provided in the provision which deals with rule making power but as it pertains to general rule making power the same cannot be found fault with by inviting the principle of supplant. 8. To appreciate the rivalised submissions urged at the Bar, it is appropriate to refer to certain provisions of the Act. Section 441 of the Act deals with the Election Petitions. Section 441(3) deals with the conditions precedent to be satisfied before an Election Petition is admitted. Section 441 -A stipulates the reliefs that may be claimed by the petitioner. Section 441 -B enumerates the grounds for declaring the elections or nominations to be void. Section 441 -C mandates the procedure to be followed in the disposal of the Election Petitions. Section 441 -F deals with finality of decision. Sub -section (2) of the said section provides that any person aggrieved by the decision of the Court on the petition, may, within 30 days from the date of such decision, apply to the High Court for revision on certain grounds. 9. The Madhya Pradesh Municipal Corporation (Election Petition) Rules, 1963 have been framed in exercise of power conferred under subsection (1) of section 433 read with section 441 of the Act. Section 433 of the Act reads as under :