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1990 DIGILAW 59 (ALL)

Shiv Narain v. District Judge, Barabanki

1990-01-15

S.H.A.RAZA

body1990
JUDGMENT S.H.A.Raza, J. 1. The short question involved in this writ petition is as to whether section 20 and sub-section (5) of section 20 of U. P. Municipalities Act (hereinafter referred to as the Act) will be applicable in case of challenge of the election of Chairman of Town Area or not. 2. The petitioner was declared elected on 13-11-1988 as Chairman of the Town Area Committee. On 13th December, 1988 opposite party no. 3 filed an election petition purporting to be one under section 43-8 read with section 19 of the Act and section 6-H of U. P. Town Areas Act, 1914. The Munsarim of District Judge reported that the District Judge does not possess the jurisdication to entertain the election petition and only the Munsif, Barabanki had the jurisdiction to entertain this petition. It was also reported that election petition was barred by ?time as the last date for filing the election petition was 12-12-1988 and not 13-12-1988. On 12-1-1989 District Judge, Barabanki rejected the report of the Munsarim by passing order to the effect that the election petition was rightly filed before his Court in view of the amendment incorporated in section 20 (5) of the Act and it was also not barred by time, as the result was declared on 13-11-1988 and the petition could have been filed within thirty days from the said date i.e. on or before 13-12-1988. Section 6-H of the Town Area Act deals with the application of the provisions of the Act regarding delimitation of wards, electoral rolls and conduct of election which is reproduced as under : - "6-H. Applications of the provisions of U. P. Act II of 1916 regarding delimitation of Wards, electoral rolls and conduct of Elections. The State Government may, by order, apply to an election (of a member) under, this Act, the provisions of the U. P. Municipalities Act, 1916. regarding....... The State Government may, by order, apply to an election (of a member) under, this Act, the provisions of the U. P. Municipalities Act, 1916. regarding....... (a) delimitation of wards for purposes of elections; (b) preparation and publication of electoral rolls for each ward including qualifications and disqualifications for registration in the electoral rolls; (c) the conduct of elections; (d) the removal of disqualifications; (e) the decision on doubts or disputes relating to elections; (f) by elections; (g) the electoral offences and corrupt practices in such election; and (h) all other matters concerning the conduct of election and the due constitution of committee; subject to such adaptations whether by way of modification, addition, or omission, but not affecting the substance, as it may deem to be necessary and expedient The contention of the petitioner is that section 6-H of Town Area Act by means of which the provisions of the Act had been made applicable to the Town Areas, only apply to the election of a member of a Town Area and not of the Chairman of Town Area for which nine separate provisions have been made under section 8 (a) sub-clause 48 (A) of the Town Area Manual. Section 38 of the U. P. Town Area Act empowers the State Government to extend to all Town Area or to any town area, any enactment for the time being in force in any Municipality in Uttar Pradesh and declare its extensions to be subject to such restriction and modifications of any, as it thinks fit. Sub-section 27 of section 38 further provides that any provision of the Act which is inconsistent with such extension, or declared, in the aforesaid notification to be inoperative, shall cease to have effect so long as the extension Is in force. 3. By means of a notification no. 6322 T/9-1-82-318-SA-77 dated 9-12-1983 published in the U.P. Gazette on 9-12-1983 sections 20, 22, 24, 26, 27, 43-8 and 92 of the Act have been made applicable to the Town Areas in U. P. 4. A perusal of the aforesaid provisions show that the election petition shall be presented to the District Judge exercising jurisdiction in the area in which the Municipality to which the election petition relates situates and such a petition shall be heard and decided by the District Judge. A perusal of the aforesaid provisions show that the election petition shall be presented to the District Judge exercising jurisdiction in the area in which the Municipality to which the election petition relates situates and such a petition shall be heard and decided by the District Judge. Section 43-B and 43-BB, which deals with election petition and transfer of petition, clearly lay down that the election petition shall be presented to the District Judge exercising jurisdication in the area, is to be presented to the District Judge and the power of the High Court to transfer the election petition from one District Judge to any other District Judge. It is thus clear that the aforesaid provisions of the Act have been made applicable to town area with regard to election matters. All the aforesaid Sections show that election petition is to be entertained and heard and decided by the District Judge. 5. The contention of the petitioner that section 6-H of the Town Area Act, by means of which the provisions of the Act have been made applicable to the Town area only apply to a member of the Town Area and not to the Chairman of the town Area, would lead to an absurd proposition, in-as-much as an election petition against a member of the town area would lie before the District Judge and election petition against the Chairman would lie before the Munsif. While interpreting the Statute the real intention of the Legislature has to be taken into account by applying the various provisions of the Act regarding by delimitation of wards, electoral rolls and conduct of election etc. of the town areas; the Legislature intended that the election petition instead of being filed before the Munsif be filed before the District. Judge. The Legislature could have never intended that the election petition to challenge the election of a member would be filed before the District Judge but the election petition challenging the election of the President would be filed before the Munsif. Thus the interpretation of section 6-H of the Town Area Act, which has been given by the learned counsel for the petitioner is not only fallacious but would lead to an absurd proposition 6. Section 20 of the Act provides for forum of presentation of the election petition and limitation for filing of the election petition. Thus the interpretation of section 6-H of the Town Area Act, which has been given by the learned counsel for the petitioner is not only fallacious but would lead to an absurd proposition 6. Section 20 of the Act provides for forum of presentation of the election petition and limitation for filing of the election petition. There is no mention in it of an election of the President or a member of the Municipal Board or Town Area Committee. SECTION 20 of the Act provides for election petition of all types, be against the member or against the Chairman of the Town Area Committee. Learned Counsel for the petitioner has made stress upon a circular issued by Director of Elections which provide for the present petition before which is contained in Annexure-4. In the said Circular Rule 50 has been quoted which reads as under :- "Rule 50. An election petition will be presented together with a deposited of Rs. 200/- as security for costs to the Munsif within whose torritorial jurisdiction the Town Area is situated within thirty days from the date on which the election was held : it shall specify the ground or grounds on which the election is questioned, and shall contain a summary of the circumstances alleged to justify the election being questioned on such ground or grounds." This argument has no force as iris only a Circular and the same has been issued without any authority of law* Rule 50 of the Rules framed under the Town Area Act is no longer in? existence and is not applicable for the reason of the fact that the provisions of section 20, 22, 43-B and 43-BB have been made applicable to an election of a member under the Town Area Act. The aforesaid provisions as well as the U. P. Town Area Act which are in-consistent with these sections, which have been .extended to the town area and Rules framed earlier ceased to have any effect. Section 3H of the U. P. Town Area Act empowers the State Government to extend to all town areas or to any town area, any enactment for the time being in force in any municipality in Uttar Pradesh and declare its extension to-be subject to such restriction and modifications, if any, as it thinks fit. Section 3H of the U. P. Town Area Act empowers the State Government to extend to all town areas or to any town area, any enactment for the time being in force in any municipality in Uttar Pradesh and declare its extension to-be subject to such restriction and modifications, if any, as it thinks fit. The effect of this extension would be - that all these provisions, Rules or orders, which are in consistent with the provisions, which have been extended, would stand superseded. 7. Admittedly the election petition was filed on 13-12-1988 i.e. within thirty days from the date of the announcement of the result of the election of the President. The result of the election was announced of 13-11-1988 and hence the District Judge was right by holding that election petition was not barred by limitation; 8. For the reasons indicated hereinabove this writ petition being devoid of merit is dismissed. However, in these circumstances, there will be no order as to costs. Petition dismissed.