KEDAR NATH GUPTA Vs. STATE

JUDGEMENT

(1.) All these writ petitions seek to challenge the order issued by the State Election Commission dated 26.2.2009 by which direction was issued for holding elections to the office of Chairmen of various Municipal Boards and the Mayor of the Municipal Corporation, Jaipur, in which vacancies caused for various reasons and primarily due to the fact that incumbents elected thereto either died or were elected as Members of Legislative Assembly in the recently held general elections.

(2.) Learned counsel for the petitioners have submitted that subject elections cannot be held because number of wards in each Municipalities are unrepresented. It is contended that consequential notification issued by various returning officers are not in conformity with Rule 10 of the Rajasthan Municipalities (Election) Rules, 1994 (for short 'Rules of 1994') and in fact they simply are notices of meeting issued under Rule 80 and not the notification. It is contended that the Rajasthan Municipalities Ordinance, 2008 by its Section 371 repealed the Rajasthan Municipalities Act, 1959 (for short 'Act of 1959') and in its clause (b) provided that the Rules framed under the Act of 1959 shall in so far as they are not inconsistent with the provisions of the Ordinance, be deemed to have been made under this Ordinance. Since the Rules of 1994 provided for indirect mode of election to the office of Chairman / Mayor and the Ordinance of 200S envisaged for direct election to such office, former being in conflict with the later, that part of the Rules of 1994 cannot be deemed to have been saved. Learned Counsel referred to Rajasthan Municipalities Laws (Repeal and Revival) Ordinance of 2009 and argued that according to Section 3 of the Ordinance of 2009, what is saved is the rules made or deemed to have been made under the Rajasthan Municipalities Ordinance, 2008 in so far as they are inconsistent with the provisions of Rajasthan Municipalities Act, 1959 but there is no clause of saving regarding Election Rules of 1994. It was argued with reference to Section 6(1)(a) of the Rajasthan General Clauses Act, 1955, the effect of repeal of Ordinance of 2008 would be revival of only what was in force or existing at the time of its repeal took effect. When the Rules of 1994 were not saved and at least in the context of conflict between the Rules of 1994 and the Ordinance of 2008 in the mode of election to the office of Chairman/Mayor, they cannot at all be taken to have been revived. Learned counsel for the petitioners argued that in spite of bar contained in Article 243ZG of the Constitution of India, this Court in appropriate cases in exercise of its power of judicial review under Article 226 of the Constitution of India can make interference. This bar in any case would not be attracted at the preelection stage. Reliance is placed on the judgement of the Supreme Court in Election Commission of India v. State of W.B. & Anr. (2003) 11 SCC 698. Learned counsel cited number of orders passed by coordinate benches of this Court staying operation of notification for election to various Panchayati Raj Institutions on consideration of some of these arguments.

(3.) Shri R. B. Mathur, learned counsel appearing for the State Election Commission argued that notification in each of these cases has been issued by the Returning Officers and with that, the process of election has commenced on 27.2.2009. In view of the bar contained in Article 243ZG of the Constitution of India, no interference can be made by this Court as the process of election has already started. Reliance in this connection is placed on judgment of the Supreme Court in Jaspal Singh Arora v. State of M.P. & Ors. (1998) 9 SCC 594 and Gurdeep Singh Dhillon v. Satpal & Ors. (2006) 10 SCC 616 and of this Court in Shanti Lal & Anr. v. State of Rajasthan & Ors. 1995 (3) WLC (Raj.) 580. It is argued that right to contest the election is only a legal right and it can be enforced only in terms of the provisions of the Statute concerned. Election of the Chairman/Mayor can be challenged only by way of filing election petition u/S. 66 of the Act of 1959.