RAGHUVANS PRASAD Vs. MAHENDRA SINGH

JUDGEMENT

(1.) - The petitioner in this case, who is a Councillor of Rewa Municipal Council, challenges the legality of the election of the non-applicant No. 1 Shri Mahendra Singh as the President and of the non-applicants Nos. 2 and 3 as the Vice-Presidents of the Council. He seeks a declaration that the election is invalid and prays that it be quashed by the issue of a writ of certiorari and the respondents be restrained from giving effect to the elections.

(2.) BEFORE stating the facts and dealing with the contentions advanced on behalf of the parties it is necessary to refer to the material provisions of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the Act). Sub-sections (2), (3) and (4) of section 43 contain provisions for the election of the President and the Vice-Presidents. They run as follows:-

(3.) IT is no doubt true that the two years' term of office of persons elected as President and Vice-Presidents in 1965 expired on 4th March 1967 as their elections were notified under section 45 in the Gazette dated 5th March 1965. IT cannot also be disputed that under section 43 (2) (b) a meeting for the purpose of electing new President and Vice-Presidents should have been held within one month of the expiry of the term of the outgoing President and Vice-Presidents. The meeting which was convened by the Collector was plainly not convened within one month of 4th March 1967. But, for that reason, the election of the respondents Nos. 1, 2 and 3 at the meeting convened cannot be held to be invalid. Section 43 (2) (b) no doubt imposes a duty on the Municipal Council to elect new President and Vice-Presidents at a meeting convened for the purpose within one month of the expiry of the term of the outgoing President and Vice-Presidents. For enabling the Council to fulfil this duty, a meeting must be convened within the prescribed time. Now, the power to call a meeting for the purpose of electing the President and Vice-Presidents has not been given to the Municipal Council; but it has been given to the Collector in the case of Class I and Class II Municipalities and to the Sub-Divisional Officer in the case of Class III and Class IV Municipalities as is clear from section 43 (2) (c) read with section 55 (2). If the Collector fails to call a meeting within the time-limit fixed by section 43 (2) (b), then the Council is not in a position to discharge the obligation imposed on it by section 43 (2) (b) of electing new President and Vice-Presidents. That obligation has been imposed on the condition that a meeting for the purpose of electing new President and Vice-Presidents is called within the prescribed time. Therefore, even if the time-limit condition is regarded as imperative, its non-compliance can be excused when the authority competent to convene a meeting for the purpose of electing new President and Vice-Presidents does not convene the meeting within the prescribed time. 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 or body on whom the duty has been imposed had no control, then the non-compliance with the formalities or requirements can be excused. This principle has been stated in Maxwell on Interpretation of Statutes, 11th Edition, at pages 372 and 373 thus:- "A section may be imperative as regards the voluntary action of parties, but not so where such events happen that its provision cannot be attended to. ** * * * * * * Enactments which impose duties on conditions are, when these are not conditions precedent to the exercise of a jurisdiction, subject to the maxim that lex non cogit ad impossibilia aut inutilia. They are understood as dispensing with the performance of what is prescribed when performance of it is idle or impossible." So also in Craies on Statute Law, 6th Edition, it has been stated at page 268:- "Under certain circumstances compliance with the provisions of statutes which prescribe how something is to be done will be excused. Thus, in accordance with the maxim of law, Lex non cogit ad impossibilia, if it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control,......".