K G KHANNA Vs. PRAKASH CHAND

JUDGEMENT

(1.) This petition under Article 226 of the Constitution arises under the following circumstances:- Election of members to the Municipal Committee, Solan, was due to take place on 26-6-1958. For this purpose, the Municipal area of Solan had been divided into five wards. We ares concerned in this petition only with Ward no. 1, from which a single member was to be elected. The petitioner, Shri K. G. Khanna was a candidate for election from Ward No. 1, his nomination paper having been duly accepted. Respondents 4, 5 and 6, namely. M/s. Radhey Shyam, Hari Saran and Murali Lal Gupta, were rival candidates and their nomination- papers had also been accepted. On 24-6-1958, i.e. two days before the election was due to take place, this petition was put in by Mr. K. G. Khanna, wherein I was requested to issue a writ of mandamus to the Returning Officer (Shri Prakash Chand, respondent no. 1), the Deputy Commissioner of Mahasu, respondent no. 2, and the Union of India, respondent no. 3, directing them to hold the election from this ward only after amending the electoral roll pertaining to this ward, i.e. by excluding therefrom the names of persons residing within the limits of the so-called 'Solan Cantonment.' According to the petitioner, the above persons were not entitled to vote in the Municipal ejections, because they were not residents of the Municipal area, i.e. since a military cantonment could not be included in the area of any Municipality, vide the proviso to Section 4, Punjab Municipal Act, as applied to Himachal Praclesh.

(2.) Along with this writ petition, there was a petition for stay of the election from Ward No. 1. Therein, it was urged that unless stay was granted, the writ petition would become infructuous and would result in undue expenditure of public money and time. Notices of both the petitions were immediately issued to the other side and arguments on the stay application were heard on 25-6-1958. On behalf of the respondents, it was urged that the petitioner was not entitled to any relief, as he had come to Court at a very late stage, i.e. on the eve of the election. It was also suggested that the election should be permitted to proceed and the petitioner could seek his remedy, if so advised, and if necessary by means of an eleiction petition. On behalf of the petitioner, the rejoinder was that the ground taken in this writ petition was beyond the scope of an election petition and as such, the latter was neiher an efficacious, nor an alternate remedy. I considered that the point raised in the writ petition was a substantial one and the stay application could not be rejected in toto. Accordingly, on 25-6-1958, I directed that while the election from Ward No. 1 would take place on the following day, as already arranged, the result thereof would not be announced till further orders. Accordingly, the election took place, but the result has not been announced.

(3.) Written-statements on behalf of respondents 1, 2 and 3 were filed in this Court on 7-8-1958. Therein, the writ petition was opposed, not only on its merits, but also on certain preliminary points. Inter alia, it was urged that the proper course for the petitioner was to file an election petition, as provided by the Election Rules. Another ground taken was that the petition had become infructuous as polling, had taken place and only the result had to be announced. In the third place, it was stated that the petitioner was a sitting member of the Committee and the disputed electoral roll was prepared during his tenure of office, to which he raised no objection. Consequently, it was contended that he was estopped from challenging the same.