Akhtar Jama Khan v. State of Bihar — 1993 DIGILAW 398 (PAT)

JUDGMENT S.B. Sinha By this application, the petitioners have questioned the validity of the election held for the Daltonganj Municipality. A notification dated 29.3.1993 was issued by the Deputy Commissioner, Palamau in purported exercise of power conferred upon him under section 7(1) of the Municipal Election & Election Petition Rules, 1953. The said notification is contained in Annexure-A to the counter affidavit. However, from a perusal of Annexure-B to the counter affidavit, it appears that the aforementioned notification, dated 29.3.1993 was published in the district gazette on 2.4.1993. The election was proposed to be held on 06.5.1993. The Returning Officer by order dated 29.3.1993 issued a general information that nomination papers can be procured from 29.3.1993 to 08.4.1993. 2. A short question which falls for consideration in this application is as to whether in view of rules 7 and 8 of the Bihar Municipal Elections & Election Petitions Rules, the election held can be said to be valid or not. The election in question was held pursuant to the direction of this court in CW.JC No. 2499 of 1992 (R). 3. Mr. P.P.N. Roy, learned counsel, appearing on behalf of the petitioners has submitted that although the election has been held and the result of the election has been declared by a notification dated 8.5.1993 published in the district gazette on 12.5.1993, as the process of election was not legally started, the entire election should be set aside. The learned counsel in support of his contention has relied upon Prameshwer Mahaseth vs. The State : A.I.R. 1958 Patna 149. The petitioners have contended that in view of the fact that no gazette notification was made, the petitioners could not come to know of the election till it was actually held on 6.5.1993. The petitioners have further alleged various irregularities in the matter of holding of election. 4. Mr. R. K. Prasad, learned counsel, appearing on behalf of the respondents no. 5 to 23, on the other hand, submitted that the remedy of the petitioners, if any, is to file an election petition in terms of the provisions of the Bihar & Orissa Municipality Act. Learned counsel, in this connection, has relied upon the order dated 26.4.1993 passed by this Court in C.W.J.C. No. 1324 of 1993 (Ramnath & Others vs. Deputy Commissioner & Others). 5. Learned counsel, in this connection, has relied upon the order dated 26.4.1993 passed by this Court in C.W.J.C. No. 1324 of 1993 (Ramnath & Others vs. Deputy Commissioner & Others). 5. Rules 7, 8 and 9 of the Bihar Municipal Election & Election Petition Rules, 1953 which are required to be noticed for the purpose of this case read thus: "7. Notification for election for Commissioners- (1) For the purpose of constituting the municipality or re-constituting it on the expiration of the term of office of the Commissioners or 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 term of the Commissioners is due to expire under the provisions of the Act. (2) The District Magistrate, may, by a like notification alter the dale fixed under sub-rule (I) for reasons to be recorded in the notification. (3) The alteration of the dale under sub-rule (2) shall not affect any action taken under the Act and these rules before the date of issue of the notification under the said sub-rule except when the State Government for reasons to be recorded in writing otherwise directs." 8. Appointment of Returning officer. Immediately after issue of the notification under sub-rule (i) of rule 7, the District Magistrate, shall appoint an officer not below the rak of a Deputy Magistrate to be the Returning Officer for the Municipality : Provided that if the Returning Officer is unavoidably prevented from discharging his functions under the provisions of these rules, the District Magistrate may by order in writing, depute any other Deputy Magistrate whom he thinks fit to discharge such function." "9. Notice of particulars of Election. Notice of particulars of Election. The Returning Officer shall appoint(a) the last date for making nominations, which shall be a date not earlier than the eighth day after the date of publication of the notice in Form I under sub-rule (2) ; (b) the date for scrutiny of nominations, which shall be a date not later than the third day after the last date for making nomination ; (c) the last date for the withdrawal of candidatures, which shall be the third day after the date of scrutiny of nominations ; (d) the date or dates on which a poll shall, if necessary, be taken which or the first of which shall be a date not earlier than the twentieth day after the last date for the withdrawal of candidature. (2) The Returning Officer shall publish the date fixed under sub-rule (1) by means of notice in form I in the manner provided in Section 356. (3) The date fixed under sub-rule (1) may be altered by the Returning Officer with the previous sanction of the District Magistrate if such alteration becomes necessary in the opinion of the District Magistrate due to some unforeseen and unavoidable circumstances and the date or dates so altered shall be deemed to be the date fixed under sub-rule (I) and shall be duly published in the manner provided in section 350. (4) The alteration of the date or dates under sub-rule (3) shall not affect any action taken under these rules before the date of alteration except when the State Government for reasons to be recorded in writing otherwise directs. (4) The alteration of the date or dates under sub-rule (3) shall not affect any action taken under these rules before the date of alteration except when the State Government for reasons to be recorded in writing otherwise directs. (5) Where any of the dates fixed under clauses (a), (b) or (c) of sub-rule (I) is a public holiday within the meaning of section 25 of the Negotiable Instruments Act, 1881 (Act VI of 1881), or has been notified by the State Government as a date to be observed as a holiday in Government offices in the State, every nomination paper delivered, or scrutiny of nominations held or notice of withdrawal of candidature given shall be considered as having been delivered, held, given in due time if such nomination paper has been delivered or scrutiny held or given before three o'clock in the afternoon on the next succeeding day which is neither such a public holiday nor a day so notified." In Parmeshwar Mahaseth vs. State of Bihar reported in A.I.R. 1958 Patna 149, it has been held by a Division Bench of this Court that rule 7 is mandatory and non-compliance thereof renders an election invalid in the following terms : 8. "..... Applying these principles, it will be seen that the publication of the notification is the very foundation of the election, and the non-compliance with these provisions is calculated to deprive any elector of their right to vote at the election. The publication of this notification really gives the District Magistrate jurisdiction to hold elections of the Commissioners of the Municipality. Mere proclamation of the notification by heat of drum by posting copies thereof, as laid down in S. 356, is not sufficient for the simple reason that most of the residents of different ward of the Darhhanga Municipality may he residing al different places. It is really the publication in the official gazelle which will convey necessary information about holding of the election to the prospective voters. The omission to give due publicity to the notification will occasion great inconvenience to the electors. Great prejudice is inherent in non- publication of the notification, and the result of such election cannot but be deemed to have been materially affected. In these circumstances, the principle of R. 75, on which the learned (Government Advocate relied, is not really applicable to the present case. Great prejudice is inherent in non- publication of the notification, and the result of such election cannot but be deemed to have been materially affected. In these circumstances, the principle of R. 75, on which the learned (Government Advocate relied, is not really applicable to the present case. I think, the provision of R. 7 of the Election Rules is mandatory, and non-compliance with those provisions will invalidate the entire election." 6. It appears that a contrary view had been taken in 1980 B.B.C.T. 144. However, the matter was considered by a Full Bench of this Court in Md. Islam vs. State : 1981 BBCJ 313 : 1981 PUR 281 (FB). The Full Bench held that this Court can interfere in its writ jurisdiction in case: (1) if there is no election in the eyes of law (2) election held was colourable one, and (3) validity of the Act and Rules of the Elections in question arc under challenge. 7. There can be no doubt that the notification under rule 7 of the Bihar Municipal Election & Election Petition Rules came into force only upon publication in a gazette on 2.4.1993. However, in this case even prior thereto the publication of the notification in the gazette, the same had been issued on 29.3.1993 which was given due publicity. 8. The respondents in paragraph 24 of their counter affidavit have stated thus: "24. That with reference to the statement made in para 7 of the said writ application in reply it is humbly submitted that it is wrong to say that the copy of notification for election of Daltonganj Municipality was only pasted in front of the office or Sub-divisional Officer, Daltonganj and all the places vide mentioning letter no.191 or dt. 29.3.1993 contrary to this the notification was duly published on notice Board and by beat of drum in all the 17 wards or Daltonganj Municipal areas and through the news items published in the various news papers. It was within the knowledge of all the citizens of Daltonganj." 9. In Parmeshwar Mahaseth (supra), no notification under rule 7 (1) was published in the Bihar Gazette at all, nor there was any compliance of the publication in the notification in the manner laid down under section 356 of the Bihar & Orissa Municipal Act. It was within the knowledge of all the citizens of Daltonganj." 9. In Parmeshwar Mahaseth (supra), no notification under rule 7 (1) was published in the Bihar Gazette at all, nor there was any compliance of the publication in the notification in the manner laid down under section 356 of the Bihar & Orissa Municipal Act. In that situation, it was held that there has been total non-compliance or rule 7 or the aforesaid Act. 10. As it would be evident from Parmesh war Mahaseth's case (supra) that the purpose of issuance of notification in the gazette is to let the intending candidates know about the fact that the election is going to be held. It is true that the Returning Officer could be appointed only after compliance of rule 7 (I). In this case, however, as noticed hereinbefore, a notification had been issued on 29.3.1993 which was published on 2.4.1993. The Returning Officer issued a notice in terms of rule 9 of the Rules on 29.3.1993 itself. As such steps appear to have not yet been taken pursuant to a decision of this Court in C.W.J.C. No. 2499 of 1992 (R) disposed of on 12.1.1993 whereby the District Magistrate, Palamau, was directed to initiate proceedings for elect ion of Daltonganj Municipality within a month from that date. It was further directed that if it was not possible to do so, an application for extension of time may he tiled in the Court. Thereafter, an application was tiled and by order dated 23.2.1993, the Deputy Commissioner was directed to initiate process of the election of Daltonganj Municipality from 31.3.1993 and the same was directed to be completed by 31.5. 1993. 11. In this situation, in our opinion, although rule 7 must be held to be mandatory, but it is one of those cases which the entire election should not he set aside as there had been substantial compliance of mandate of law. 12. In Statutory Construction by Crawford, it has been stated that "even where a statute is clearly mandatory or prohibitory, yet, in many instances, the courts will regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their justification in considerations of justice. 12. In Statutory Construction by Crawford, it has been stated that "even where a statute is clearly mandatory or prohibitory, yet, in many instances, the courts will regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their justification in considerations of justice. It is a well known fact that often to enforce the law to its letter produces manifest injustice, for frequently equitable and humane considerations, and other considerations of a closely related nature, would seem to be of a sufficient calibre to excuse or justify a technical violation of the law". The afore-mentioned passage has been quoted with approval by a Bench of this Court in Ganga Charan Mukherjee vs. Reba Bani Mazumdar & another : 1970 All India Rent Control Journal page 1041 wherein it was held thus : "Lex non cogit ad impossibilia (the law does not compel a man to do that which he cannot possibly perform) is applicable in the instant case. This maxim has been applied in various decisions in cases where even there is mandatory provision in an Act. In such cases it is considered as substantial compliance. I find at page 387 of Maxwell on Interpretation of Statute, ninth edition, a passage which reads; "....... It would seem to be some times equally so where compliance was though not impossible in this sense, yet impracticable, without any default on the part of the person on whom the duty was thrown ...." 13. Yet, recently, in C.W.J.C. No. 1107 of 1989 (R) Dwarika Prasad Gupta vs. State of Bihar, disposed of on 16.1.1991, it was, inter alia. held that although in both the sections 4 and 6 of the Land Acquisition Act, the word 'shall' has been used, regard being had to the scope and object of the provisions, section 4 of the Act is mandatory in nature; whereas section 6 is directory and thus substantial compliance would serve the purpose. 14. In this case, as noticed hereinbefore, the District Magistrate was following the mandate of this Court insofar as he had to initiate the process of holding elections in respect of Daltonganj Municipality prior to 31.3.1993. He issued a notification dated 29.3.1993 and sent it for publication in the district gazette. 14. In this case, as noticed hereinbefore, the District Magistrate was following the mandate of this Court insofar as he had to initiate the process of holding elections in respect of Daltonganj Municipality prior to 31.3.1993. He issued a notification dated 29.3.1993 and sent it for publication in the district gazette. He immediately after the issuance of the notification appointed the Returning Officer and saw to it that the election is held and the results arc published within the time granted by this Court i.e. by 31.5.1993. 15. Evidently, such order had been passed by this Court in the aforementioned CWJC No. 2499 of 1992 (R) as the election for Daltonganj Municipality had not been held for a long time. 16. We arc also not satisfied that the petitioners despite wide publicity of the notification had no knowledge and, therefore, could not participate in the election. Further in view of the fact that the election has already been held for appointment of Ward Commissioners and the Chairman, in our opinion, it would not be proper for this Court to set aside the entire election so as to revive the process of election once again as a result whereof mandatory order passed by this Court in the earlier writ application shall be rendered wholly nugatory. It is further well known that sometimes a right of an individual has to give way to a right of public in general. Reference in this connection may be made to Sukhu Mahato vs. State of Bihar: . 1992 (2) PLJR 134 wherein it has been held as follows : "24. This Court, it is now well settled, while exercising its jurisdiction under Article 226 the Constitution of India may refuse to exercise its jurisdiction in a given case. In Joy Bharat Transport Company and another v. Central Coalfields Ltd. reported in 1988 BLT 192 I had held ; "It is now well known t hat this Court does not interfere within a given case only because it would be lawful to do so. The High Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India may refuse to issue writ in the event it is found that substantial justice has been done to the parties or in the larger interest it would not be prudent to issue a writ. The High Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India may refuse to issue writ in the event it is found that substantial justice has been done to the parties or in the larger interest it would not be prudent to issue a writ. It is also known that the right of an individual sometime has got to give way to the right of the public at large. Under Article 226 of the Constitution of India, a High Court may refuse to exercise its jurisdiction in favour of a party who has not approached the Court with clean hands." In that case reliance was placed upon the decision of the Supreme Court in the case of Municipal Board Pratapgarh v. Mahendra Singh Chawla and others reported in 1982 (2) SCC 331 : 1982 UJ (SC) wherein it has been held as follows: "6. What are the options before us, obviously as a logical corollary to our finding we have to interfere with the judgment of the High Court because the view taken by it is not in conformity with the law. It is at this stage that Mr. Sanghi, learned counsel for the respondent invited us to consider the humanitarian aspect of the matter. The submission is that the jurisdiction of this court under Article 136 of the Constitution is discretionary and therefore this Court is not bound to till at every approach found not in consonance for confirmity with law but the interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly rule of law must prevail but as is often said rule of law must run akin to rules of life, and life of law is not logic but experience." "25. A Division Bench of the Allahabad High Court in Civil Misc. Writ Petition No.12626of 1987 in almost similar situation refused to grant relief to the petitioner thereof stating the law thus: "Furthermore, the present is not a tit case where under Article 226 of the Constitution any relief could be granted. A Division Bench of the Allahabad High Court in Civil Misc. Writ Petition No.12626of 1987 in almost similar situation refused to grant relief to the petitioner thereof stating the law thus: "Furthermore, the present is not a tit case where under Article 226 of the Constitution any relief could be granted. It has been stated in the counter affidavit that Rs.5000000/- would be suffered per day by the National Thermal Power Corporation Limited if the eucalyptus trees belonging to the petitioner arc not cut and line is not laid, as is planned by respondent no. 2. As a result, the counter affidavit further says, the supply of electricity to Lucknow, Moradabad and other districts would be hampered. As against the interest of the public at large the interest of the petitioner cannot be given any consideration. The petitioner had been asked by the letter dated 2.7.1987 by the Respondent 3 to be present at the time of cutting of the trees on July 15-16, 1987, so that woods may be removed by him. This can still be done. In our opinion, the present is not a case fit for granting of any of the reliefs prayed for." 17. I n this view of the matter, in our opinion, this is not a fit case to exercise our discretionary jurisdiction under Article 226 of the Constitution of India. This application is, therefore, dismissed.