Makhdoom Khan v. District Magistrate, Moradabad — 1974 DIGILAW 73 (ALL)

JUDGMENT C. S. P. Singh, J. - The petitioner who is a resident of Sambhal district Moradabad, is an elector of the Municipal Board of that town. A motion of non-confidence was passed against the President of the Board, and as a result a casual vacancy occurred in the office of the President. The petitioner alleges that he intended to contest the election of the President, and was anxious to know the dates of the nomination of the election as notified under paragraph 6 of the U. P. Notified Area (Conduct of Election of Presidents and Election Petitions) Order, 1964. On inquiry from Sri Yashpal Saran Gupta, the Acting President, he wad informed that no Gazette Notification under paragraph 6 of the 1964. Order aforesaid had been received in the office so far, but that information of the election had been given to the members of the Board by a notice dated 20.10.1973 put in a written inquiry on the office of the District Election Officer, Moradabad, inquiring as to whether any Gazette Notification fixing the election programme had been received in his office. He received a reply to the effect that a Gazette Notification had been received in the office on 3.11.1973. Under this Gazette Notification of the 20th October, 1973, which purported to publish the order of the District Magistrate under paragraph 6(1) of the aforesaid order, the date for nomination was fixed, as 31.10.1973, and that for withdrawal 5.11.1973. Election was fixed for 6.11.1973 between 11 P.M. to 1 P.M. The petitioner avers that on account of the fact that this Gazette Notification was not available anywhere, upto 31.10.1973, the petitioner could not file his nomination paper. The petitioner now challenges the entire election proceedings and prays for a mandamus commanding the respondents not to hold the election of the President of the Board till such time that a proper Gazette Notification is not issued. By order dated 5.11.1973, the request for restraining the holding of the election was denied, but an order was vacated on 21.11.1973 and thereafter Akhtar Husain who had succeeded in the election has been made a party. By order dated 5.11.1973, the request for restraining the holding of the election was denied, but an order was vacated on 21.11.1973 and thereafter Akhtar Husain who had succeeded in the election has been made a party. Another Writ Petition No. 7499 of 1973 by one Mahesh Chandra was filed on 23.11.1973 for a writ of mandamus directing the respondents not to give effect to the result of the election, and for a writ of quo warranto calling upon Akhtar Husain to disclose the authority under which he purported to act as the President of the Municipal Board. 2. Counsel for the petitioner has contended that it was mandatory on behalf of respondent No. 2 to have notified the date of nomination, and the date of poll etc. by a proper Gazette Notification under paragraph 6 of the Election Order, and in as much as no such Gazette Notification was in existence till at least 2.11.1973, or in any event, the Gazette Notification was not available in the district till 3.11.1973. the election of the President held in violation of this mandatory provision was void and illegal. In the counter-affidavit filed on behalf of the respondent, it is stated that the District Magistrate passed an order on 11.10.1973 under para 6(1) of the Notified Areas (Conduct of Election of Presidents and Election Petitioner). Order, 1964 and sent copy of this to the Superintendent Printing and Stationery, U.P. for being printed in the U.P. Gazette on 20.10.1973. The order was duly published in the U.P. Gazette on 20.10.1973 and the date of the nomination and the date of poll were duly notified in this Gazette Notification. It is also stated that in compliance with the requirements of paragraph 6(2) of the aforesaid order, the District Magistrate published a notice in Hindi in form No. 1 and got a copy of it affixed in his office, another copy, in the office of the Municipal Board and the third copy on the Notice Board of the Tehsil, and despatched copies of the notice to all members which was posted under certificate of posting. This notice was posted on the notice board of the Collectorate, Tehsil and the Municipal Board on 20.10.1973. It is alleged that the Executive Officer of the Municipal Board got this information published by beat of drum on 24.10.1973. This notice was posted on the notice board of the Collectorate, Tehsil and the Municipal Board on 20.10.1973. It is alleged that the Executive Officer of the Municipal Board got this information published by beat of drum on 24.10.1973. Notice is also said to have been published in the local newspapers "Auj Ki Kasht" in its issue of 14.10.1973. In the counter-affidavit filed on behalf of Akhtar Husain, respondent No. 3, it is averred in paragraph 13 of the counter-affidavit that the petitioner had discussed the matter with Sri Anzar Husain one of the members of the Board on 21-10-1973, as to the likely candidate for the office, and the chances of success of the acting President Sri Yashpal Saran Glipta. In the rejoinder-affidavit, the allegation that publicity was given to the dates of nomination and poll is denied. It is asserted that the notification in question although it purports to be of 20-10-1973 was in fact printed, published and made available for sale at the Government Press, U. P. Allahabad only on 31-10-1973. It will be now useful to extract paragraph 6 of the U. P. Notified Areas (Conduct of Election of Presidents and Election Petitions) Order 1964 :-- "6. Appointment of date for nomination etc. -(1) As soon as may be after the election of members of a Committee is completed at a general election within the meaning of Section 43 of the Act or a casual vacancy occurs in the office of President of Committee, the District Magistrate shall, by Notification in the official Gazette, appoint for the election to the office of President of the Committee - (a) the date for making nominations which shall be a date at least four days after the date of - notification; (b) the date for scrutiny of nominations which shall be the date next following the date fixed under clause (a) ; and (c) the last date far withdrawal of candidature which shall be the third-day after the date fixed for scrutiny of nomination ; and (d) the date on which and the order during which a poll shall, if necessary, be taken : Provided that the date for taking the poll shall be a date not more than five days after the date fixed under clause (c). (2) On the issue of notification under sub para (1), the Returning officer shall give public notice of the election in Hindi in Form I by affixing a copy of the notice at his office and another copy at the office of the Committee and in such other manner, if any, as he may think fit and shall also cause to be dispatched by post under certificate of posting a copy of the notice to the last known address of each member:" 3. Now in the present case, a notification in the official Gazette was published giving the particulars required by paragraph 6(1) of the U. P. Notified areas order 1964. It has also been seen that it has been averred in the counter-affidavit that due publicity was given to the dates of the nomination etc. as required by paragraph 6(2) of the order, although the fact that requirements of paragraph 6(2) where fully complied with is denied by the petitioner. It is however not possible to grant relief to the petitioner on this ground as it is a disputed question of fact. 4. Counsel for the petitioner also did not seriously contend that this controversy should be resolved in the present petition. Counsel for the petitioner has, however, published in the official Gazette as has been averred in the counter-affidavit, but in as much as it is amply clear that the official Gazette was not available in the town before the date of nomination, the entire election is vitiated on this account. To adumbrate this contention, it has been urged that paragraph 6 of the Order provides notices by two modes; one as provided in sub-paragraph (1) of paragraph 6 and the other as provided in sub-paragraph (2). Both the procedures are mandatory, and unless there is strict compliance with the requirement of two sub-paragraphs or paragraph 6, the entire election is vitiated. In this connection, it has been urged that the purpose of issuing a notice in the official Gazette is to give information to all intending electors the Municipality, whom it may not be possible to give information by the mode of the notice set out in sub-paragraph 6(2) of the order, and in case the official Gazette in which the notice published. is not available before the nomination date, the requirements of sub-paragraph 6(1) are not fulfilled by mere publication in the Gazette. is not available before the nomination date, the requirements of sub-paragraph 6(1) are not fulfilled by mere publication in the Gazette. Counsel for the petitioner in support of this contention has drawn my attention to a large number of cases decided under other Acts. I propose to refer to them row. 5. In Emperor v. Akhar, A.I.R. 1946 All 223, the provincial Government in exercise of power conferred upon it by sub-rule (2a) of Rule 81 of the Defence of India. Rules, made an order called U. P. Cattle, Sheep and Goat (Slaughter) Control Order 1943. This order was published in the U. P. Gazette Extraordinary on the same date, and was Subsequently amended on two occasions. The amendments were also notified in the U. P. Gazett. Paragraph 3 of this Control Order prohibited slaughter of goats below two years, and paragraph 4 of the order provided for punishment in case the order was contravened. A number of butchers were prosecuted for breach of the Order. The accused were acquitted on the ground that they were unaware of the Order. Rule 119(1) of the Defenee of India Rules provided for publication of order of the nature with which the case was concerned, in such manner as was best adopted for informing persons concerned. After referring to the decisions of the Nagpur High Court reported in Shakoor Hasan v. Emperor, A.I.R. 1944 Nagpur 40, the Sindh Chief Court in Emperor v. Manghu Mal Teku Mal, A.I.R. 1944 Sindh 142 the Patna High Court in Madan Lal v. Emperor, A.I.R. 1945 Patna 119 and that of the Bombay High Court in Emperor v. Ravangonda Lingagonda, A.I.R. 1944 Bombay 259 it was held that in as much as Rule 119 of the. Defenee of India Rules enjoined on the relevant authority to decide about the manlier of publication of the Order, and as the Provincial Government had not taken any action in terms of Rule 119, mere publication in the Official Gazette of the Order was not sufficient to satisfy compliance with the provisions of Rule 119. This case is not of any assistance, as the decision turns on the provision of Rule 119 of the Defence of India Rules, which does not have a counterpart in the present Municipal Rules. This case is not of any assistance, as the decision turns on the provision of Rule 119 of the Defence of India Rules, which does not have a counterpart in the present Municipal Rules. The case of Raghunath Krishna Ghanekar v. Emperor, A.I.R. 1947 Bombay 239 was also a case which turned on the interpretation of Rule 119 of the Defence of India, Rules, and as such this case too does not cover up the point. In State of Madras v. V. G. Row, A.I.R. 1952 S. C. 196 the validity of the Criminal Law Amendment Act 1908 as amended by Act XI(11) of 1950 was challenged. By the amendment, the State Government was empowered to declare certain association as unlawful. The State Government had declared an association as unlawful, by an order published in the Official Gazette. Referring to the efficacy of information to the concerned persons, by publication in the Official Gazette, their Lordships observed on page 201 as under :- "Publication in the official gazette, whose publicity value is by no means great may not reach the members of the association declared unlawful, and if the time fixed expired before they knew of such declaration, their right of making a representation which is the only opportunity of presenting their case, would be lost. Yet, the consequences to the members which the notification involves ate most serious, for, their very membership thereafter is made an offence wider Section 17." This case too does not cover the point. There are three decisions cited by counsel for the petitioner which support the contention. They are Balkrishna Anant Hirlekar v. Emperor, A.I.R. 1931 Bombay 132; Parmeshwar Mahaseth v. state of Bihar, A.I.R. 1958 Patna 149 and Jagjit Singh v. State of Rajasthan, A.I.R. 1968 Rajasthan 24. In Balkrishna Anant Hirlekar A.I.R. 1931 Bombay 132, an association had been declared to be illegal, and Section 7 of the Criminal Law Amendment Act XIV of 1968 made provision for punishing members of such an association. The order declaring the association unlawful was published in the Bombay Gazette Extraordinary on 14-10-1930 and the accused were arrested at 5-50 A.M. on the morning of 15-10-1930. The order declaring the association unlawful was published in the Bombay Gazette Extraordinary on 14-10-1930 and the accused were arrested at 5-50 A.M. on the morning of 15-10-1930. Section 16 of the Amendment Act 1908 ran as under:- "If the Local Government is of opinion that any association interferes or has for its object interference with administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the Local Government may, by notification in the official Gazette, declare such association to be unlawful." Beaumont. C. J. interpreting the word "notification" as used in Section 16 observed on page 133:- "The word used in Section 16 is `notification' and not insertion'. `Notification is defined in Webster's Dictionary as : "Act of notifying; act, of making known; an intimation or notice; especially, act of giving official notice, or information by words, by writing, or by other means ;" so that the essence of notification is the giving of notice, and, in my opinion the words' by notification in the official Gazette' means simply `by giving notice in the official Gazette'. One Can illustrate the point under consideration by a simple illustration. Supposing the Government make a declaration that a particular association is unlawful and instruct the Government Printers to print an extraordinary official. Gazette containing that declaration. Supposing that some change in the political situation then takes place, and the Government alters its view. It communicates with its printers and finds that the Gazette has been printed and is ready for publication, but that nothing further has been done. The Government then instructs the printers to send all the copies to the secretariat, and there, they are retained. It seems to me that in such a case as that if is quite algin that the declaration making the association unlawful has not been notified in the Gazette, and the association has not become unlawful. But if the Government view is right, then in such a case the association has become unlawful though nobody knows the fact except the Government must not only insert be prosecuted for being a member of that association without having had any opportunity of learning that the association has become unlawful. But if the Government view is right, then in such a case the association has become unlawful though nobody knows the fact except the Government must not only insert be prosecuted for being a member of that association without having had any opportunity of learning that the association has become unlawful. In my opinion, this is not the law, and in order to prove that an association has been declared unlawful under the Criminal Law Amendment Act of 1908, the Government must not only insert the declaration in the official, Gazette, but must publish the Gazette in the manner usually adopted for, publishing such Gazette, and allow a reasonable opportunity to people concerned to see the Gazette. If anyone suspects that an association of which he is a member is likely to be declared unlawful, he can take steps to ascertain the manner in which the Gazette is published, and to inform himself of the conjuncts of any Gazette, and if does not do that and is prosecuted for being a member of an unlawful association, he has only himself to blame for not having taken the precautions which the statute enables him to take." The words used in paragraph 6(1) of the Order are similar to those in Section 16 of Criminal Law Amendment Act of 1908, to the extent that the District Magistrate has to appoint the election dates for nomination by Notification in the official Gazette. In Jagjit Singh v. State of Rajasthan, A.I.R. 1968 Rajasthan 24 a case under Motor Vehicles Act; a question arose as to whether the mere printing of the notice in the official Gazette which was not "but of press, would be sufficient to meet the requirements of the Act. Their Lordships of the Rajasthan High Court referred to this matter on page 27 and observed as under :- "In such circumstances, it is urged by Mr. Agarwal that the printing of a notice in the official Gazette, if it was not out of the press, cannot be deemed to be a good notice to the public at large. We find a considerable force in this argument of Mr. Agarwal, but this fact alone shall not dispose of the objection raised by Mr. Agarwal that the printing of a notice in the official Gazette, if it was not out of the press, cannot be deemed to be a good notice to the public at large. We find a considerable force in this argument of Mr. Agarwal, but this fact alone shall not dispose of the objection raised by Mr. Agrawal, before us........" In the present case, even though the District Magistrate had appointed the dates of the election by publishing it in the official Gazette, it cannot be said that there was notification of the dates as required by paragraph 6 of the 1964. Order, for the Gazette a not available to the electors before the nomination date. Any elector of the Municipal Board is entitled to file his nomination for the office of the President. It is not necessary that he should keep on residing in the Municipality at all points of time. It was in order to meet such a contingency that Paragraph 6(1) of the Order enjoins on the District Magistrate to notify the dates of the election in the official Gazette, so that information may reach the electors who may not be physically present when such a declaration is made. So far as the electors residing in the Municipality and the members of the Board, sufficient provision is made for notice to them by paragraph 6(2) of the Order. It further appears to me that the provision of paragraph 6(1) of the order are mandatory, and compliance will them is a sine qua non for the validity of further steps to the holding of the election. The mandatory nature of paragraph 6(1) is apparent from the fact that other mades of the notice set out in paragraph 6(2) of the. Act are to be taken only after the issue of a notification under paragraph 6(1) of the order. The Patna High Court in the case of Parmeshwar Maheseth v. State of Bihar, A.I.R. 1958 Patna 149 relating to the municipal election, has, while interpreting the provisions of Rule 7 of Bihar Municipal Election and Election Petition. Rules (1953) held that the publication of a notification under Rule 7 was the foundation of a valid election. The Patna High Court in the case of Parmeshwar Maheseth v. State of Bihar, A.I.R. 1958 Patna 149 relating to the municipal election, has, while interpreting the provisions of Rule 7 of Bihar Municipal Election and Election Petition. Rules (1953) held that the publication of a notification under Rule 7 was the foundation of a valid election. Rule 7(1) of the aforesaid Rules runs as under :- "7(1) For the purpose of constituting the municipality or reconstituting it on the expiration of the term of office of the Commissioners under Section 386, the District Magistrate shall by a notification published in the official Gazette and in the manner laid down in Section 356, call upon all the wards of the municipality to elect Commissioners in accordance with the provisions of the Act and these rules before such date as may be specified in the notification : Provided that in the case of a general election held on the eve of the expiration of the term of the Commissioners, a notification under this rule shall not be issued more than four months prior to the date on which the terms of the Commissioners is due to expire under the provisions of the Act,- The purpose of paragraph 6(l) of the order in dispute seems to be similar to the purpose of Rule 7(1) of Bihar Municipal Election and Election Petition Rules (1953), and as such the Principle laid down in the Patna High Court case can safely be relied for adjudging the consequences of a breach of paragraph 6(1) of the U. P. Notified Areas (Conduct of Election of Presidents and Election Petitions) Order 1964. 6. The result is that the petition is allowed and the election of Akhtar Husain is quashed. The respondents are directed not to give effect to the result of the impugned election. This order will govern Writ Petition No. 7499 of 1973 filed by Mahesh Chandra. The petitioner is entitled to his costs.