SHAMBALINGAIAH RACHAPPA v. RETURNING OFFICER — 1979 DIGILAW 215 (KAR)

K. BHIMIAH, J. ( 1 ) IN this petition in which the petitioner has sought for the issue of quo warranto two questions arise for decision. They are: (1) Whether respondent-2, who was in temporary charge of Bijapur revenue Sub-division was competent to exercise the statutory functions under the Karnataka Municipalities act, 1964 (hereinafter referred to as the Act) and the Karnataka Municipalitied (Election of Councillors) rules, 1977 (hereinafter referred to as the Rules ). (2) Whether the action taken by respondent-2 to hold the election to the City Municipality of Bijapur, is validated by the notification dated 6-6-1979 (Ex-N) appointing respondent-2 as the Assistant Commissioner of Bijapur Revenue Sub Division retrospectively. ( 2 ) THESE questions arise in the following circumstances. The term of the City Municipal council of Bijapur was to expire on 9-7-1979 and the election was to be held on 3-7-1979. The calendar of events was to be published on 29-5-1979. The Divisional Commissioner of Belgaum appointed the Assistant Commissioner of Bijapur revenue sub-division as the Returning Officer on 7-5-1979 under rule 4 of the Rules, The assistant Commissioner of Bijapur sub division prepared the calendar of events and intended to issue it on 21-5-1979. He went on casual leave on 12-5-1979 and continued to be on leave till 3-6-1979. On 12-5-1979 the Deputy commissioner of Bijapur district placed respondent-2, who was the Head quarters assistant to Deputy Commissioner, in temporary charge of the bijapur Revenue Sub-division. On 27-5-979 he orally directed respondent who was in charge of the Revenue Sub division, Bijapur, to publish the calendar of events. In pursuance of the said direction respondent-2 published the calendar of events on 29-5-1979. Thereafter, the Deputy Commissioner of Bijapur Addressed a communication to the Divisional Commissioner on 27-5-1979. informing him that the incharge assistant commissioner was not competent to discharge the statutory functions under the Rules and therefore, he requested the Divisional Commissioner to request the State Government to appoint the incharge Assistant commissioner of Bijapur Revenue Sub division with effect from 14-5-1979. The Divisional Commissioner on receipt of this communication addressed a letter to the State Government for the appointment of respondent-2 as the assistant Commissioner of Bijapur revenue sub division. On reciept of this communication the State Government passed the notification (Ex. N) dated 6-6-1979 appointing respondent-2 as the officiating Assistant Commissioner of bijapur Revenue Sub Division retrospectively from 14-5-1979. The notification Ex. On reciept of this communication the State Government passed the notification (Ex. N) dated 6-6-1979 appointing respondent-2 as the officiating Assistant Commissioner of bijapur Revenue Sub Division retrospectively from 14-5-1979. The notification Ex. N, reads thus:"sri G. A. Hippargi, K. A. S. Class-I (Junior Scale) Officer doing duty as Headquarters Assistant to deputy Commissioner, Bijapur, is appointed concurrently to officiate as assistant Commissioner, Bijapur sub Division, with effect from 14th may 1979 till he is relieved by Sri. B. Nanjundappa. By order and in the name of the Governor of Karnataka. "respondent-2 proceeded to conduct the elections the polling of which was held on 1-7-1979 and the results were announced. In the election the petitioner was one of the candidates. Respondents 3 to 37 were also candidates. Respondent -2 declared respondents 3 to 37 as elected. The petitioner is an unsuccessful candidate. He has come up before this Court seeking for a writ of quo warranto on the ground that respondents 3 to 37 are usurpers as their election was no election in the eye of law. ( 3 ) MR. B. Thilak Hegde, learned advocate for the petitioner firstly contended that respondent-2 who was the in-charge Assistant Commissioner of the bijapar Revenue Sub-Division placed in charge of the Bijapur Revenue sub-Division by the Deputy Commissioner, Bijapur was not competent to exercise the statutory functions under the Act and the Rules. In support of this contention Mr. Hegde urged that respondent-2, who was placed in temporary charge of the bijapur Revenue Sub Division was not competent to exercise the powers of a returning Officer, as he was not appointed by the Government to officiate as the Assistant Commissioner of the said sub division on the date i. e. , 29-5-1979 on which date the calendar of events were published. Secondly he contended that the appointment of respondent- 2 under Ex. N. retrospectively would not validate the action takan by respondent-2 in publishing the calendar of events and conducting the elections till the results were announced by him. ( 4 ) ON the other hand Sri V. C. Bramharayappa Additional Government Advocate, firstly contended that respondent-2 was placed in charge of the Bijapur Revenue Sub division by the Deputy Commissioner under the powers vested in him by Sec. 10 (3) of the Karnataka Land Revenue Act, 1964. ( 4 ) ON the other hand Sri V. C. Bramharayappa Additional Government Advocate, firstly contended that respondent-2 was placed in charge of the Bijapur Revenue Sub division by the Deputy Commissioner under the powers vested in him by Sec. 10 (3) of the Karnataka Land Revenue Act, 1964. He arged that the Returning Officer was not appointed by the Divisional commissioner under Rule by name and it was the Assistant Commissioner of of the Bijapur Revenue Sub division who was appointed as the Returning officer and since respondent-2 was placed in charge of the said sub division, he was competent to exercise the statutory powers under the rules. Secondly, he contended that the officiating appointment of respondent-2 retrospectively from 14-5-1979 by the government validates the action taken by respordent-2 and therefore, he urged that the election of the City municiipal Council, Bijapur, was held according to law and this case does not call for interference with the elections held. Thirdly he contended that there is alternative remedy for the petitioner to approach the Election tribunal as required under Secs. 21, 22 and 23 of the Act and therefore, this petition under Art. 226 of the Constitution is not maintainable. He further urged that this writ petition involves a post election dispute and therefore this writ petition is not maintainable. ( 5 ) MR. Jayakumar Patil, learned counsel for respondents 3 to 37 reiterated the arguments advanced by the learned Government advocate on behalf of respondents 1 and 2. He further urged that the petitioner being a defeated candidate has no locus standi to challenge the election of respondents 3 to 37 by way of a writ petition under Art. 226 of the Constitution. ( 6 ) BEFORE appreciating the rival contentions raised on behalf of the parties, it is necessary to refer to some relevant provisions of the Act and the Rules and also Karnataka Land Revenue Act, 1964. Section 17 of the Act deals with the general election of councillors. It says that a general election of councillors shall be held for the purpose of constituting a municipal council for the first time or after the period for which an Administrator is appointed under section 315 or after the period of supersession under Sec. 316. Section 17 of the Act deals with the general election of councillors. It says that a general election of councillors shall be held for the purpose of constituting a municipal council for the first time or after the period for which an Administrator is appointed under section 315 or after the period of supersession under Sec. 316. Further it provides for a general election being held for the purpose of filling the vacancies arising by the efflux of time in the office of the councillors. Section 20 of the Act provides for the publication of results of the elections. It contemplates that the names of persons elected or appointed as the case may be, 33 councillors president or vice president of the municipal council shall be published in the official gazette, provided that the names of all the councillors elected at a general election and appointed under Section 12 shall be so published as far as possible simultanously. Section 21 of the Act which deals with election petitions, reads thus:"21. Election petitions (1) No election of a councillor shall be called in question except by an election petition presented to the election Tribunal within fifteen days from the date of the declaration of the result of the election. (2) An election petition calling in question any such election may be presented on one or more of the grounds specified in section 23 (a) by any candidate at such election or (b) by any voter of the division concerned. (3) A petitioner shall join as respondents to his petition all the candidates at the election:. . . . Sec. 22 of the Act which provides for the relief that may be claimed by the petitioner reads thus: "22 (1) A petitioner may claim (a) a declaration that the election of all or any of the returned candidate, is void, and (b) in addition thereto, a further declaration that he himself or any other candidate has been duly elected. (2) The expression 'returned candidate' means a candidate who has been declared as duly elected. " section 23 of the Act reads thus: 23. Grounds for declaring elections to be void (1) Subject to the provisions of sub-section (2), if the election Tribunal is of opinion (a ). . (c ). . . (2) The expression 'returned candidate' means a candidate who has been declared as duly elected. " section 23 of the Act reads thus: 23. Grounds for declaring elections to be void (1) Subject to the provisions of sub-section (2), if the election Tribunal is of opinion (a ). . (c ). . . (d) that the result of the election in so far as it concerns a returned candidate has been materially affected (iv) by the non-compliance with the provisions of this Act or of any rules or orders made thereunder, the election Tribunal shall declare the election of the returned candidate to ba void. "election Tribunal is defined in sub-sec. (9) of Sec. 2 of the Act thus:"election Tribunal' means in respect of any area any judicial officer appointed by notification by the government to be Election Tribunal in respect of such area and where no such judicial officer is appointed the subordinate Judge having jurisdiction over the area within which the election has been or should have been held. " ( 7 ) RULE 4 of the Rules reads thus:"4. Returning Officer (1) For the conduct of election to every City municipal Council, the Commissioner and to every Town Municipal Council the Deputy Commissioner shall appoint a Returning Officer who shall be an Officer of the Government. ** ** (3) It shall be the duty of the returning Officer at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by the Act and these rules. "rule 3 of the Rules empowers the returning Officer to publish notice of holding an election under the proviso to Sec. 12 of the Act and the notice is required to contain the particulars enumerated in Rule 8. Section 10 of the Karnataka Land revenue Act, 1964 deals with the appointment of Assistant Commissioners. Sub-sec. (1) empowers the state Government to appoint to each district as many Assistant Commissioners as it may deem expedient and all such Assistant Commissioners and all other officers employed in the revenue Administration of the district shall be subordinate to the Deputy commissioner. Sub-sec. (2) empowers the State Government to place any assistant Commissioner appointed under sub-sec. Sub-sec. (1) empowers the state Government to appoint to each district as many Assistant Commissioners as it may deem expedient and all such Assistant Commissioners and all other officers employed in the revenue Administration of the district shall be subordinate to the Deputy commissioner. Sub-sec. (2) empowers the State Government to place any assistant Commissioner appointed under sub-sec. (1) to be in-charge of the revenue administration comprising one or more taluks called a Revenue Sub- division and such Assistant Commissioner shall perform all the duties and exercise all the powers conferred upon the Assistant Commissioner by this Act or any other law for the time being in force. Sub-sec. (3) says that an Assistant Commissioner appointed under sub-sec. (1), but not placed in-charge of a Revenue Sub-Division under sub- sec. (2) shall, subject to the orders of the State Government, exercise such powers and perform such duties as the deputy Commissioner may assign to him. Sec. 14 deals with the discharge of the duties of the officers during temporary vacancies. Sub-sec. (3) of Sec. 14 of the Land revenue Act provides that if the Assistant Commissioner of a Revenue sub-Division is disabled from performing his duties or is on leave or for any reason vacates his office or dies, the tahsildar stationed at the headquarters of the Assistant Commissioner shall, unless other provision is made by the Government, succeed temporarily to his office and shall be deemed to be the Assistant Commissioner of the revenue Sub-Division under this Act until the Assistant Commissioner resumes charge of his Revenue Sub- division or until the Government appoints a successor to the former Assistant Commissioner, and such successor takes charge of the appointment. ( 8 ) THE undisputed facts in this case are: Respondent-2 was working as headquarters Assistant to the Deputy commissioner, Bijapur. He was placed in temporary charge of the office of the assistant Commissioner, Bijapur Re venue Sub-Division, in the absence of sri B. Nanjundappa, who went on casual leave" on 12-5-1979, by the deputy Commissioner. The Deputy commissioner asked respondent-2 on 27-5-1979 orally to publish calendar of events for holding general election for tha election of councillors to the city Municipal Council, Bijapur. The Deputy commissioner asked respondent-2 on 27-5-1979 orally to publish calendar of events for holding general election for tha election of councillors to the city Municipal Council, Bijapur. Respondent-2 published the calendar of events on 29-5-1979, held the election as per the Calender of events and published the results on 3-7-1979 It is not in dispute that respondent-2 who was in temporary charge of tha office of the Assistant Commissioner was appointed by the Divisional commissioner afresh as required under rule 4 of the Rules. Therefore, the question for determination is whether respondent-2 who was in temporary charge of the office of the Assistant commissioner, Revenue Sub-Division, bijapur, was competent to exercise the statutory functions under the Rules. ( 9 ) MR. Thilak Hegde, learned advocate for the petitioner in support of his first contention placed reliance on the ratio cf the decision in E. E. Gupta v. State of Mysore, 1962 Supp. Mys. LJ. 555 wherein Narayana pai, J. , as he then was, speaking for the Bench observed thus:"in our opinion, an appointment to a post, whether acting or permanent imports the actual holding of that post by the appointee whether permanently or for a stated period. This flows directly from the normal meaning which one attaches to the word 'appoint'. On the other hand, 'to be in charge of the duties of a post' merely means to discharge or perform those duties without necessarily holding the particular post to which the additional duties appertain. The person so put in additional charge of other duties already holds a post to which he had been formerly appointed. The imposition of new duties upon such an officer already appointed to a post does not, as pointed out in george W. EVans vs. United States (57 US L. Ed. 353) constitutes fresh appointment of that officer. This result stands to reason, because the duties of an office or post may vary from time to time without making any distinction or difference to the post itself. 353) constitutes fresh appointment of that officer. This result stands to reason, because the duties of an office or post may vary from time to time without making any distinction or difference to the post itself. If the additional duties do not charge the character of the post or convert it into a new post, the result cannot be different for reason only of the fact that the additional duties imposed are such as do not normally appertain to that post, for exigencies of administration may require the imposition temporarily or for a short period upon an officer of certain duties which do not normally appertain to his office. So long as he continues to hold the office to which he had been originally appointed, the imposition of additional duties cannot therefore amount to either a fresh appointment of the officer or the appointment of the officer to another post. In our opinion, this case comes within the purview of both these exceptions. For the reasons already detailed by us, it is plainly impossible to hold that the second respondent the Health Officer, can at all function as Returning Officer under the Election Rules unless one totally disregards or places considerable strain on the language of the statute. Secondly it is a matter of considerable public importance that the government and the officers exercising the statutory functions in respect of elections should act in compliance with the relevant provisions of the statute and the Courts cannot shut their eyes to mistakes or illegalities which go to the root of the matter. When the law requires compliance with certain conditions or certain pre-requisites, it is not open to regard their non-compliance as either immaterial or of no consequence, especially in view of the fact where the law considers a non-compliance with any particular provision as imaterial and of no consequence to the validity of the election, it generally takes care to state so in express terms. "from what has been excerpted above, it is clear that an officer placed in charge of the duties of an office or of a post cannot be said to be an officer appointed to that office or post. Imposition of additional duties does not amount to fresh appointment of the officer or an appointment to that post. "from what has been excerpted above, it is clear that an officer placed in charge of the duties of an office or of a post cannot be said to be an officer appointed to that office or post. Imposition of additional duties does not amount to fresh appointment of the officer or an appointment to that post. Further, it is clear that an officer, who is placed in charge of an office, is not competent to exercise the statutory functions. In M. Maridev v. State of mysore, (1966) 1 Mys. L. J. 325. a Division Bench of this court reiterated the view taken in e. E. Gupta's (1 ). case. In this decision it has been made abundantly clear that an officer placed in charge of the current duties of a vacant post, whether in addition to his own or independently, cannot exercise any statutory powers of the office but ho can merely perform the day to day duties only. In an unreported decision of this Court in Gurunath Devareddy veereddy v. The Karnataka State road Transport Corporation, W. P. No. 5403 of 1977 on 9-6-78. Rama Joi:-, observed thus: it is settled law that a statutory administrative power has to be exercised by a person who is appointed to the concerned post on a regular basis A person who is placed in independent charge or in charge of a post can only discharge the foutine duties and cannot exercise the statutory powers. In another unreported decision of this court in Sangangouda Rachanagouda patil v. The President, the Sindgi taluka, Primary Co-op. Land Development bank Ltd. , W. P. No. 6571 74 decided on 19-2-1975, jagannatha Shetty, j. , while dealing with an election matter, has observed thus:"it is admitted that the said Aval karkun was not a gazetted officer and was also not appointed by the registrar as a Returning Officer to hold: the election. A person who was placed in additional charge of the duties of the Tashildar would not automatically become a Returning officer. It is therefore clear that the action taken by the Aval Karkun was totally without jurisdiction and must be held to be void. " ( 10 ) MR. A person who was placed in additional charge of the duties of the Tashildar would not automatically become a Returning officer. It is therefore clear that the action taken by the Aval Karkun was totally without jurisdiction and must be held to be void. " ( 10 ) MR. Jayakumar Patil, learned advocate for respondents 3 to 37 made an attempt to distinguish the cases decided by this Court by the Division benches on the ground that in E. E. Gupta's (1) case the officer who exercised the duties of a Returning officer was a Health Officer and who was not of the grade of the Commissioner of the City Municipal Council, he further urged that in the instant case, the officer who discharged the duties of the Returning Officer is of the same rank and cadre of an Asst. Commr according to him, a subordinate officer was placed in charge of the duties of a higher post and therefore, he urged that the ratio of this decision does not bear upon the facts of this case. Similarly in regari to the other 2 unreported decisions, he made an attempt to distinguish the cases on facts in support of his submission that the ratio of the decisions does not bear upon the facts oi the present case. It is not possible to accept this contention. In S. R. Patil's case (3) it has been clearly observed that Aval Karkun was not a gazetted officer and he was also not appointed by the Registrar as a Returning Officer. In that case the appointment of a eetuming Officer was required to be made by the Registrar, but the Aval karkun, who was a non-gazetted officer was not appointed by him and in that view of the matter, the learned judge held that the action taken by the Aval Karkun was totally without jurisdiction. ( 11 ) IN the instant case respondent-2 was not appointed to officiate as the assistamt Commissioner of Bijapur revenue Sub Division by the State government. He was placed in temporary charge by the Deputy Commissioner. ( 11 ) IN the instant case respondent-2 was not appointed to officiate as the assistamt Commissioner of Bijapur revenue Sub Division by the State government. He was placed in temporary charge by the Deputy Commissioner. In view of the ruling in e. E. Gupta's case (1) and also in view the other decisions cited above, respondent-2 being not appointed by the divisional Commissioner under rule 4 of the Rules, as Returning Officer, his action in publishing the calendar of events and in holding the election is without jurisdiction, as he was not competent to exercise the statutory functions. This aspect of the matter is also clear from the communication sent by the Deputy Commissioner, Bijapur, to the Divisional Commissioner Belgaum in which the Deputy Commissioner has felt at the time of sending the communication that respondent-2 was not competent to perform the statutory functions. Therefore, the communication was sent to the Divisional Commissioner by the Deputy Commissioner to request the State Government to appoint respondent-2 to officiate concurrently as the Assistant Commissioner of Bijapur Revenue Sub Division. Therefore, 1 am clearly of the opinion thai respondent: 2 who was placed in temporary charge of the Bijapur revenue Sub division, was not competent to exercise the statutory functions under the Rules. Hence the election held by him is without jurisdiction and void. ( 12 ) AS regards the second contention of the petitioner that the notification appointing respondent-2 to officiate as the Assistant Commissioner of Bijapur revenue Sub division retrospectively, it may be stated that such an appointment giving retrospective effect, does not validate the action taken by respondent-2 in holding the election to the city Municipal Council, Bijapur, in view of the decisions relied upon by mr. Thilak Hegde. He placed strong reliance on the decision of the Supreme court in the Income Tax Officer, alleppy v. M. C. Ponnose, AIR 1970 SC. 285. dealin with a case of the State Government investing Tahsildar with powers of tax Recovery Officer retrospectively. At para-5 of the judgment it has been observed by the Supreme Court thus: "now it is open to a sovereign legislature to enact laws which have retrospective operation. 285. dealin with a case of the State Government investing Tahsildar with powers of tax Recovery Officer retrospectively. At para-5 of the judgment it has been observed by the Supreme Court thus: "now it is open to a sovereign legislature to enact laws which have retrospective operation. Even when the Parliament enacts retrospective laws such laws arein the words of willes, J. in Phillips v. Eyre (1870) 40 LJ QB 28 at P. 37'no doubt prima facie of questionable policy, and contrary to the general principle, that legislation by which, the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts and ought not to change the character of past transactions carried on upon the faith of the then existing law. 'the courts will not, therefore, ascribe retrcspectivity to new laws affecting rights unless by express words or necessary implication it appears that such was, the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect: (See: Subba rao J. , in Dr. Indramani Pyarelal gupta v. W. R. Nathu (1963) 1 SCR 721 A. I. R. 1963 SC 274) the majority not having expressed any different opinion on the point; Modi food Products Ltd. v. Commr- of sales Tax UP, A. I. R. 1956 All 35; india Sugar Refineries Ltd. , v. State of Mysore, AIR 1960 Mys. 326 and general S. Shivdev Singh v. State of Punjab (1959) 61 Pun. Lr. 514 = (A. I. R. 1959 Punj. 453) (FB ). It can hardly be said that the impugned notification promulgates any rule, regulation or byelaw all of which have a definite signification. 326 and general S. Shivdev Singh v. State of Punjab (1959) 61 Pun. Lr. 514 = (A. I. R. 1959 Punj. 453) (FB ). It can hardly be said that the impugned notification promulgates any rule, regulation or byelaw all of which have a definite signification. Tha exercise of the power under sub- clause (ii) of clause (44) of section 2 of the Act is more of an executive than a legislative act. It becomes, therefore, all the more necessary to consider how such an apt which has retrospective operation cap, be valid in the absence of any power conferred by the aforesaid provision to so perform it as to give it retrospective operation. " ( 13 ) IT is clear from the enunciation of law by the Supreme Court that an appointment made by the State government cannot have retrospective effect. In the cage dealt with by the supreme Court a Tahsildar was retrospectively appointed to perform certain functions under the Income tax Act. The Supreme Court held that the notification cannot operate with retrospective effect. Therefore, in the instant case, the notification appointing respondent-2 to act as the assistant commissioner concurrently with retrospective effect cannot validate the action taken by him in issuing the calendar of events and conducting general elections to the City Municipal council, Bijapur. ( 14 ) BOTH the learned High Court government Advocate and the learned advocate for respondents 3 to 37 vehemently contended that the dispute involved in this petition is a post election dispute and therefore, the petitioner is not entitled to approach this Court under Art. 226 of the Constitution,. It is further urged that the remedy for the petitioner is to approach the election Tribunal constituted under the Act with an election petition, and strong reliance was placed on the provisions of Secs. 21, 22 and 23 of the Act. It is urged on behalf of the respondents that the petitioner who is a defeated candidate has no locus standi to file this writ petition having participated in the election. It is further contended that he being a voter of the division, should challenge the election of all the returned candidates by impledaing them as respondents as laid down by sub-sec. (3) of Sec. 21 of the Act. It is also contended that non- compliance with rule 4 of the rules, falls under Clause- (iv) to sub-sec, (d) of sec. It is further contended that he being a voter of the division, should challenge the election of all the returned candidates by impledaing them as respondents as laid down by sub-sec. (3) of Sec. 21 of the Act. It is also contended that non- compliance with rule 4 of the rules, falls under Clause- (iv) to sub-sec, (d) of sec. 23 of the Act and if such non-compliance is pleaded, it is incumbent upon the petitioner to show that the election of the returned candiates i. e. , respondents 3 to 37 has been materially affected, to get relief in an election petitionilr placed strong reliance on the decision cf the Bombay High Court in bhairvlal Chunilal v. State of Bombay,air 1954 Bom. 166. and also on the decision of the supreme Court in Nanhoomal v. Hira mal, AIR 1975 SC. 2140 . ( 15 ) MR. Thilak Hegde, learned Advocate for the petitioner does not dispute the principle of law laid down in these two decisions. But his submission is that these two decisions dealt with the cases relating to post-election disputes. In Bhairulal Chunilal's case (6) the election was conducted by a president as a Returning Officer, whose term was extended by the State Government beyond the period and that he continued to be a president. While dealing with that case Chagla, C. J. , observed that the president was still a defacto president though rot de-jure and therefore expressed the view that no quo warranto would issue in the circumstances of that case. Similarly in Nanhoo Mai's case (7) the district Magistrate under the provisions of the U. P. Municipalities act was to appoint a date for filing the nominations to the President and Vice- president posts immediately after the general elections to the Municipal council. The aggrieved parties sought to challenge the calendar of events issued by the District Magistrate. The high Court of Allahabad allowed the writ petition and quashed the calendar of events. The Supreme Court while dealing with this question has observed thus:"'this court also held that the word 'election' connotes the entire procedure to be gone through to return a candidate whenever we talk of elections in a democratic country. . . . . The high Court of Allahabad allowed the writ petition and quashed the calendar of events. The Supreme Court while dealing with this question has observed thus:"'this court also held that the word 'election' connotes the entire procedure to be gone through to return a candidate whenever we talk of elections in a democratic country. . . . . Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in Ponnuswami's case ( AIR 1952 SC. 64 ) in its application to the facts of this case. "as already stated in the case dealt by the Supreme Court, it was the District magistrate, who was the Returning officer who issued the calendar of events and there was no challenge to his appointment as a Reluming Officer but the challenge was to the calendar of events published by him under rule 6 of the U. P. Municipalities (Conduct of Election of Presidents and Election petitions) Order 1964. These two decisions are distinguishable on facts and in my opinion the ratio of the decisions in the above two cases does not bear upon the facts of the present case. This is clearly a case which involves a pre-election dispute in that respondent-2 was not the Returning officer appointed under rule 4 and that the action taken by him at the instance of the Deputy Commissioner to publish the calendar of events and hold the elections was without any legal authority and without any jurisdiction. It is pertinent to note that in Nanhoo Mai's case (7) the Supreme court has left open the question whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Art. 226 of the Constitution in relation to elections by observing that it is not necessary to consider it. It is pertinent to note that in Nanhoo Mai's case (7) the Supreme court has left open the question whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Art. 226 of the Constitution in relation to elections by observing that it is not necessary to consider it. ( 16 ) FROM the foregoing discussion, it is clear that respondent-2 had no legal authority to issue calendar of events and hold the general elections to the City Municipal Council, Bijapur and therefore, the election so held is no election in the eye of law. The view i have taken is supported by the decision in Rajendar Singh v. N. K. Shejwalker, AIR 1971 M. P. 248. In para-17 of the judgment the Court has observed as follows:" (v) The existence of an alternative remedy does not bar the jurisdiction of tins court to issue a writ of quo warranto although in appropriate cases quo warranto may be refused on the ground of existence of an alternative remedy. (vi) The discretion whether to, grant or to refuse a writ of quowarranto has to be exercised in accordance with sound judicial principles. (vii) Where an election is held in breach of imperative provisions of the law or that the election is not an election in the eye of law, this court would not refuse to issue a writ of quo warranto. (viii) A quo warranto will not be issued in a case of mere irregularity which can be cured. (ix) In proceedings for a writ of quo warranto the petitioner does not seek to enforce any right of his own as such for compliance or any non- compliance of any duty towards him. It is the right of the respondent to hold the office which is in question. The test to be applied is whether there has been an usurper of an office of a public nature and substantive in character. These propositions find suport in a number of reported decisions. . . . . . As respondent No. 1 was not eligible for the election patently we feel compelled to issue a writ of quo warranto. "from the above it is clear that respondents 3 to 37 who have been declared elected are not competent to hold the office of councillorship. Hence, a quo warranto shall issue. . . . . . As respondent No. 1 was not eligible for the election patently we feel compelled to issue a writ of quo warranto. "from the above it is clear that respondents 3 to 37 who have been declared elected are not competent to hold the office of councillorship. Hence, a quo warranto shall issue. ( 17 ) IN the result, rule is made absolute and the writ petition is allowed. Sri V. C. Brahmarayappa, Addl high Court Government Advocate is permitted to file his memo of appearance within two weeks. --- *** --- .