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1973 DIGILAW 224 (KAR)

YELLAPPA MALLARAPPA GAVALI v. STATE OF MYSORE

1973-08-27

K.VENKATASWAMI

body1973
( 1 ) THIS petition under Art. 226 of the Constitution is by four citizens, resident in the limits of Ranebennur Municipality. It is their case that the said Muncipal Council of Ranebennur was superseded as far back as in the year 1966 and till today no elections have been held for the purpose of reconstituting of the Municipal Council. Such supersession was continued from time to time for limied periods by issuing orders by the State government in exercise of the powers under S. 316 of the Mysore municipalities Act (hereinafter referred to as the Act), the period of last such supersession extending upto 30-9-1973. The authorities concerned, apparently thinking' that there would be no further supersession of the municipal Cquncil, took the necessary preparatory steps for the purpose of holding an election before the expiry of the said period. On 26-5-1973, there was a division of wards under S. 13 of the Act. On 5-6-1973, the returning Officer was appointed as per Rule 4 of the relevant rules, by the deputy Commissioner, Dharwar, with a direction that he should hold the elections for the reconstitution of the Municipal Council before 1-10-1973. On 16-7-1973, the Voters' List also had been duly prepared and published. On 23-7-1973, the publication of the calendar of events had been scheduled to take place, though it is contended on behalf of the petitioners that such publication had in fact taken place by affixure of Notice in the form of ext. IT on the Notice Board of the Municipality. It is alleged that pursuant to directions issued by the Government through a telegram dt. 21-7-1973, no further steps were taken for the conduct of the election. In this context, it is stated that on a requisition being made by some of the petitioners for the issue of the nomination papers as per Rule 11 of the Rule, the Returning Officer refused to furnish them on the ground that there had been no due publication of the calendar of events. In this context, it is stated that on a requisition being made by some of the petitioners for the issue of the nomination papers as per Rule 11 of the Rule, the Returning Officer refused to furnish them on the ground that there had been no due publication of the calendar of events. It is on these facts that the petitioners have sought for the following reliefs : (1) For a writ in the nature of mandamus or any other appropriate writ or order or direction directing respondents 1 to 4 to hold the election to elect the Councillors to the Town Municipal Council immediately from the stage at which the election process was interrupted by the 1st respondent-State: and (2) further directing the 1st respondentrstate, not to continue the order of supersession of the Town Municipal Council, Ranebennur, beyond 1-10-1973. ( 2 ) ON behalf of the respondents, a counter has been produced principally contending that there has been no publication of the calendar of events as alleged on behalf of the petitioners and that the Government has taken a decision not to hold elections in the new Mysore Area till the end of -October 1973, in view of the prevalance of drought conditions in several parts of the State. It is, therefore, submitted that pursuant to the said decision, a telegram was sent to the Deputy Commissioner, Dharwar District, in which Ranebennur is located, on 20-7-1973, calling upon him to stay the election in question; The Deputy Commissioner, in his turn, sent a telegram on 21-7-1973 to the Administrator of Ranebennur Municipality. It is evident from the records that such telegram was served on the said administrator on that very day. It is also contended that the copy of the calendar of events produced as Ext. D, had not been in fact published as required by the rules and that the said document was the result of collusion on the part of the 2nd petitioner, who was entrusted with the printing of such calendar. In these circumstances, it is submitted that the petition should be dismissed. ( 3 ) ON behalf of the petitioners, three contentions were urged by sri K. A. Swamy, the learned Counsel. In these circumstances, it is submitted that the petition should be dismissed. ( 3 ) ON behalf of the petitioners, three contentions were urged by sri K. A. Swamy, the learned Counsel. They are as follows : (1) That the State Government had no authority to interrupt the progressrof elections once the election process had commenced on account of the various steps taken preparatory to the issue of calendar of events, as also the publication of the very calendar of events on the Notice Board of the Municipal Office; (2) that the calendar of events had been in fact published and the version on behalf of the respondents in this regard cannot be accepted as true; and (3) that in any event, the Administrator cannot be continued, in that the order of supersession cannot be renewed or continued by the Govt. ( 4 ) I shall proceed to deal with these contentions seriatim. On the first contention, reliance was placed on S. 13 of the Act, and two decisions, of the Supreme Court and the High Court of Bombay. It was argued that once steps for division of wards and appointment of returning officer and preparation of Voters' List had been gone through, the election should be deemed to have commenced. In such a situation, the election process cannot be interfered having regard to the decision of this Court in Jaya devappa Shivappa Heroor v. State of Mysore, WP. 1f73/72 dt. 18-8-72 s. 13 of the Act, merely provides that for the purpose of election of Councillors to be elected to fill the seats under sub-sec. (2) of S. 11, the Government shall, after previous publication, by notification determine (a) the number of territorial divisions into which the Municipality shall be divided; (b) the extent of each territorial division; (c) the number of seats allotted to each territorial division which shall be not less than three and not more than five; and (d) the number of seats, if any, reserved for the Scheduled Castes and for"women in each territorial division. I fail to see any compliance with S. 13 of the Act would necessarily lead to the conclusion that the election process had commenced. The decision in Ponnuswami v. Returnnig officer, Namakkal, AIR 1952 SC 64 . is inapplicable to the facts of the present case. I fail to see any compliance with S. 13 of the Act would necessarily lead to the conclusion that the election process had commenced. The decision in Ponnuswami v. Returnnig officer, Namakkal, AIR 1952 SC 64 . is inapplicable to the facts of the present case. That is a decision rendered in the context of the provisions of the Representatiori of the people Act. Their Lordships while adverting to a question as to when an election commences, they referred to an enunciation occurring in Halsbury's laws of England with approval. The enunciation is reproduced in the said decision. On going through the enunciation, I find there is nothing in support of the view canvassed before mo that the steps taken prior to the calendar of events would necessarily lead to an inference that the election had commenced much earlier to the issue of such calendar. For all these reasons, this decision is clearlv distinguishable. The next decision relied on is Yesvanthrao Balwantrao Chavan v. Mangalmurti, AIR 1958 Bom 397 . My attention is drawn to an enunciation therein to the effect that an election comprises of certain steps to be taken and till the poll is actually taken. It is stated therein 'in the first place, there is an announcement about holding of election. . . . . . ' It is, therefore, dear from this enunciation, that the first step is the announcement of the holding of the election which is generally done by the publication of the calendar of events, and not any steps taken prior to it as particularised in the case on hand. For all these reasons, I am unable to accept the argument based on the first of the above contentions. ( 5 ) THE next contention relates to the question of fact, whether the calendar of events as shown in Ext. D, was actually published. On this, we have the denial on behalf of the respondents, in an affidavit sworn to by the Under Secretary to Government. It is contended on behalf of the petitioners that no reliance could be placed on such an averment in the absence of a supporting affidavit from the Returning Officer himself, who is imputed with the act of publication. The Returning Officer, no doubt, is a party to this petition. It is contended on behalf of the petitioners that no reliance could be placed on such an averment in the absence of a supporting affidavit from the Returning Officer himself, who is imputed with the act of publication. The Returning Officer, no doubt, is a party to this petition. But, there are certain circumstances present in this case which would clearly show that such publication had not been in fact done as urged on behalf of the petitioners. It is seen from the records, made available by the learned Government Pleader, that a telegram had been sent to the Returning Officer on 21-7-1973, i. e. , two days prior to the apparent date of publication of the calendar of events a copy of which has been produced as Ext. D. That telegram clearly calls upon, the Returning Officer, not to proceed with the election. Further, in the papers produced on behalf of the petitioners, there is an endorsement issued to one of them by the Returning Officer himself. It is Ext. E in this case. In that, he has clearly stated that the prayer of the applicant for the issue of a nomination paper could not be complied with as the calendar of events has not yet been published in accordance with law. On this endorsement, the petitioners would have me construe that the publication had in fact taken place but the same, according to the Returning officer, had not been made in accordance with law. I am unable to accept this contention. In the context of these two documents, the averments in the counter affidavit must be accepted as true. This contention, therefore must also fail. ( 6 ) THE last contention is based on the interpretation of S. 316 of the act. The argument is that having regard to the reasons for supersession in sub-sec. (1) of S. 316, it cannot easily be postulated that even after the expiry of the terms of the Municipal Council, which had been superseded in the first instance, any reconstituted Council, after holding fresh elections for the purpose, would, without a trial being afforded to them, have given, cause in terms of sub-sec. (1) of S. 316 for a subsequent or further super session. This argument has no force when viewed in the context of sub- sees. (3) and (5) of S. 361. Sub-sec. (1) of S. 316 for a subsequent or further super session. This argument has no force when viewed in the context of sub- sees. (3) and (5) of S. 361. Sub-sec. (3) thereof provides for extension of the period of supersession even after the expiry of the term of the councillors who were superseded in the first instance. Sub-sec. (5) thereof provides for placing of every order of supersession before the legislature, apparently for its consideration or approval, if need be. I am not, therefore, persuaded to agree with this contention of the petitioners. ( 7 ) FOR the above reasons, this petition fails and is accordingly dismissed. In the circumstances of the case, I think it proper to direct the parties to bear their own costs. ( 8 ) I. A. NO. I filed by four voters of Ranebennur town for being impleaded as respondents is dismissed as having become unnecessary. --- *** --- .