TULSI RAM Vs. PT.PARMA NAND

JUDGEMENT

(1.) Respondent No. 9 is the Municipal Committee Bilaspur Town, Bilaspur and elections of 11 seats to the said Municipal Committee were held in December, 1975 and the results were notified vide Annexure A, dated l5th December, 1975. The petitioner was successful as one of the members of respondent No. 9. The respondent No. 1 that is, Pandit Parma Nand was defeated by the petitioner from Ward No. 4. Shri Kashmir Singh respondent No. 8 who was the Sub -Divisional Magistrate pasted a copy of the successful candidates on the notice board on 15th December 1975 of information of the general public. On 20 -5 -1975 the election of the President and Vice President of respondent No. 9 was fixed on which date elected members except Shri Jai Kumar participated in the election. Respondent No. 1 was not the elector nor he could have been the elector for the election of the President on 29th December, 1975. In this election the petitioner was elected as President of the Municipal Committee. The election of the members of respondent No. 9 was published in the Gazette on 17th December 1975 and the election of the President was published on 6th January 1976 (Annexure -B).

(2.) Respondent No. 1 filed election petition under rule 88 of the Himachal Pradesh Municipal Election Rules, 1970 (to be referred lo at the Rules) and he presented the petition to respondent No. 2 that is, the Deputy Commissioner, on 31st December, 1975. The respondent No. I was required to deposit security in the Government treasury but he failed to do so, and instead he deposited the same with the election office. When the petition was presented on December 31, 1975 a note was made by the respondent No. 8 as under : - "The petition be examined in the light of the rules and thereafter has to be forwarded to the State Government." It appears that no action was taken on the order made by respondent No. 8 on December 31, 1975. Thereafter, it appears, the petition was forwarded to respondent No. 3. The only action that was taken by respondent No. 3 that is the State, was the appointment of a Commission to try the election petition and, therefore according to the petitioner, the respondents 2, 3 and 8 failed to discharge their duties enjoined upon them by law. According to him it was incumbent upon respondents No. 2, 3 and 8 to have discharged their duties to see whether the petition was competent under law, whether it was filed by the competent person, whether the same was within limitation and whether the provisions of rule 90 (1) had been complied with. But the respondents failed to apply their mind.

(3.) After the respondents 2 and 8 had sent the election petition of respondent No. I to respondent No. 3 he issued a notification on 21st August, 1 76 appointing the commission to hold the enquiry into the allegations made in the election petition. The petitioner has challenged the orders appointing the commission and the proceedings before the Commission as being illegal and ultra vires on the grounds that the election petition by respondent No. 1 is not according to the rules and as such respondent No. 3 had no jurisdiction to refer the petition for enquiry to the respondent No. 10, and, further the respondent No. 10 had no jurisdiction to proceed with the enquiry. The respondent No. 1 was not competent to challenge the election of the petitioner to the office of the President as he was neither a candidate nor any elector at the election. Further the election petition was not in accordance with the rules and, therefore, the respondents Nos. 2, 3 and 8 had no jurisdiction to proceed further in the matter. The election petition was barred by time and as such could not have been referred to respondent No. 3 for appointing a commission. Further it was averred that respondent No. 1 could have challenged the election within 14 days of the notification of the election of the President. Further notification was issued on 6th January, 1976 and the petition was filed on 31st December, 1975 and as such the petition was premature and it could not have been referred to respondent No. 10 for enquiry. Further the security deposit had not been made in accordance with the Rules. Further the respondent had also challenged the election of the petitioner as member of the Committee and as also its President. Therefore, he had to make two separate deposits of the security and that not having been done, the petition was liable to be dismissed. In the premises of these facts, the petitioner has, therefore, prayed for quashing the notification Annexure -F, dated 21st August, 1975, whereby the respondent No. 3 has appointed the District and Sessions Judge. Simla Division, as the Commission to hold the enquiry into the allegations made in the election petition. Secondly the prayer is for quashing the proceedings instituted by respondent No. 1 in the form of an election petition.