SH KRISHAN KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Both these writ petitions are being disposed of by this common judgment because the factual and legal position arising in both these petitions is the same. Both these petitions pertain to co-option of in all four members (respondents 4 to 7) who were co-opted to the Municipality of Muktsar. The petition is filed by an elected member of the Municipal Committee, Muktsar. The election of the members of the Municipal Committee had taken place on 6.9.1992. During that election, 16 members were elected. The election of one post of member had to be post-poned because one of the contesting candidate in that Ward had passed away. Consequently, one member was elected on 2.11.1992. Thus on completion of election of all the 17 members of the Municipal Committee, the names of these elected members were published in a Gazette issued on 3.11.1992. Thereafter by issuing a notice dated 16.11.1992 the date of the first meeting of the elected members was scheduled on 19.11.1992. During that meeting the oath of allegiance was to be administered to these members. In the same meeting the election of the co-opted members was also to take place. The papers before me indicate that, as per Annexure P-4, in all four members (respondents 4 to 7) were then co-opted. The petitioners in both these petitions challenged the co-option of these members on various grounds.

(2.) Before I proceed to consider these writ petitions on the ground raised in the petitions, a preliminary objection to the maintainability of these writ petitions need to be disposed of. It was contended that the proper forum for any dispute regarding the election of co-opted members would be by filing of an election petition before the appropriate authority as per Rule 53 of the Punjab Municipal Election Rules, 1952, framed under the Punjab Municipal Act, 1911. Further it was submitted that Article 243 of the Constitution of India also creates a bar to the filing of such a writ petition. Visualising such objection, the counsel for the petitioner brought my attention to the case of Hirday Narain v. Income Tax Office, AIR 1971 Supreme Court 33. In that case the petitioner had filed a writ petition without availing of the statutory remedy. The High Court considered the case on merits; and the matter went to the Supreme Court. While considering the tenability of the petition in the light of the non-availing of the statutory remedy under the Act. Their Lordships observed that if the writ petition had not been entertained by the High Court on the ground that the petitioner should have availed statutory remedy, then the petitioner would have availed the statutory remedy because by that time the period of limitation prescribed under that Act had not expired. Since the High Court in that case entertained the writ petition, the Supreme Court was of the view that in the set of circumstances, the existence of the alternative remedy would not be a hurdle in entertaining the writ petition. Briefly stated, the ratio of the observation is that in a given set of circumstances writ petition may be entertained despite the fact that there was availability of alternative remedy. In this case, both these writ petitions were admitted by the Division Bench after hearing both the sides, presumeably despite the argument that an alternative remedy was possible. The writ petitions pertained to co-option of members on 19.11.1992. The writ petitions were admitted on 17.12.1992. The period of the members of the Municipal Committee would be five years as per Section 13 of the Punjab Municipal Act. It, therefore, appears that only about seven months are left now in respect of the tenure of these members. The period for filing the election petition has also expired, and it would be another matter as to whether the delay in filing the election petition would be condoned on the ground that the petitioner was bonafidely pursuing remedy in another Court. By the time all that controversy is over, the term of five years of the membership to the Municipal Committee would come to an end. It, therefore, clearly appear that in the set of circumstances, it would be illusory now to relegate the petitioner to an alternative remedy on the ground that he should have resorted to that first. Counsel for the State brought my attention to the provisions of Article 243-ZG of the Constitution Clause (b) states that no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State. That Article had been introduced in the Constitution with effect from 1.6.1993. Obviously, therefore, on the date of admission of these petitions on 17.12.1992, the said Article was not in force. In the set of this petition. I find no force in the argument that the petition was not maintainable under that Article. The learned Deputy Advocate General, Haryana, brought my attention to the case of Boddula Krishnaiah and Anr v. State Election Commissioner, JT 1996(4) S.C. 156. In that case the election to the Gram Panchayat had taken place on 27.6.1995. Before the election took place, the High Court by order dated 26.6.1995 had allowed certain persons to participate in the election. In the set of this factual position, it was held that the election of the Gram panchayat could not be challenged by way of writ petition in view of Article 243(o)(b), and the only remedy was by way of filing an election petition. That ruling is obviously not applicable. He has further brought my attention to the case of Prem Nath v. State of Punjab and Ors., 1993(14) The Punjab Legal Reports & Statues 23. Their Lordships in that case disposed of a bunch of writ petitions in which the question involved pertained to the acceptance or rejection of the nomination papers of the candidates. These writ petitions were disposed of by holding that the petitioners should have availed alternative remedy. After taking into consideration a catena of decisions, the following observations were quoted from a decision of a Full Bench of this Court :-

(3.) This takes me to consider the contention on merits. As the outset it may be mentioned that regarding the contentious factual position, the scope of these writ petitions would be a limited one. The factual position as would be spelt out from the pleadings and the documents before me, will have to be considered as it is. The petitioners have raised a contention that on the day of holding the meeting in which members were co-opted, they were prevented from taking part in the meeting. Since adjudication of that contention involves leading of evidence and appreciation of it, the counsel for the petitioners did not argue on that point. He confined his argument on the legal position as would emerge from the pleadings and the papers before the Court.