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2011 DIGILAW 2713 (ALL)

Ajmal Kha @ Chhote v. State of U. P. and Others

2011-11-30

AMITAVA LALA, P.K.S.BAGHEL

body2011
(Delivered by Hon’ble Amitava Lala, J.)—The writ petitioner herein claims to be the Chairman, Nagar Panchayat (Municipality), Pahasu, District Bulandshahar, Uttar Pradesh. According to him, duration of office of the Chairman and the elected body of the Nagar Panchayat will continue for a period of five years from the date of first meeting, after constitution or reconstitution of the Municipality. On 14th November, 2006 the oath of the petitioner and other elected members was administered and the first meeting of the elected body was held on 23rd January, 2007. Therefore, five years’ period will be counted from 23rd January, 2007 but not from the date when the oath was administered i.e. 14th November, 2011. According to the petitioner, the State respondents are interfering with the work of the Nagar Panchayat under the Chairmanship of petitioner and the respondent no. 2 has appointed the respondent no. 3 as Administrator of the Nagar Panchayat. In this background, the petitioner has made this writ petition with the following prayers: “(A)issue a writ, order or direction in the nature of Mandamus restraining the respondent no. 3 for not take charge of Chairman, Nagar Panchayat, Pahasu, Bulandshahr from the petitioner. (B) issue any other writ order or direction deemed proper in the circumstances of the case. (C) award cost against the respondents.” 2. It appears to us that plinth of argument of the petitioner is mainly based on an interim order dated 15th November, 2011 passed by a Division Bench of the Lucknow Bench of this High Court in Writ Petition No. 11226 (M/B) of 2011 (Sandeep alias Sandeep Mehrotra v. State of U.P. through Prin. Secy. Nagar Vikas Lko. and others) and three other matters. Copy of such interim order is annexed with the writ petition as Annexure-2. While going through such interim order we find that though the scope of writ petitions was limited in respect of continuance of office of the elected body vis-a-vis appointment of administrator of the Municipalities and/or Municipal Corporations, but other aspects i.e. holding elections and validity of the Division Bench judgements of this Court were also considered. The first judgement of the Division Bench (Amitava Lala and V.K. Mathur, JJ.) is dated 19th October, 2011 delivered in Civil Misc. Writ Petition No. 53557 of 2011 (Ajeet Jaiswal v. State of U.P. and another) when the other one delivered by the Division Bench (R.K. Agrawal and Mrs. The first judgement of the Division Bench (Amitava Lala and V.K. Mathur, JJ.) is dated 19th October, 2011 delivered in Civil Misc. Writ Petition No. 53557 of 2011 (Ajeet Jaiswal v. State of U.P. and another) when the other one delivered by the Division Bench (R.K. Agrawal and Mrs. Saroj Bala, JJ.) is dated 22nd December, 2005 reported in 2006 (1) UPLBEC 874 (Anugrah Narain Singh v. State of U.P. and others). The first judgement i.e. Ajeet Jaiswal (supra) relates to holding of elections within the time prescribed not only as per the constitutional mandate but also as per the Constitution Bench judgement of the Supreme Court reported in AIR 2007 SC 269 (Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and Ors.), however, on the basis of Census-2011. In any event, when practical difficulties arose on the part of the Union of India and others to complete the census data as per the direction of this Court, all the parties in Ajeet Jaiswal (supra) inclusive of the Union of India came forward with several applications at a time and by an order dated 15th November, 2011 the Court was pleased to consider this aspect that the census can not be completed before 2013 and, therefore, the earlier order dated 19th October, 2011 was clarified by saying that there should not be any difficulty in holding the elections of the Municipal bodies as per Census-2011 as far as practicable. The State Election Commission will also, as far as possible, proceed on the basis of the latest electoral rolls. In case of any practical difficulty in respect of census data of 2011, the election process can be proceeded on the basis of census data of 2001 in that respect. Since the date of notification had already expired, the Court directed to notify the election by 16th November, 2011. It is well known that the constitutional mandate given under Article 243U of the Constitution of India, which prescribes duration of Municipalities etc., clearly speaks that every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. Accordingly, all the Courts are uniform in respect of such constitutional mandate. Accordingly, all the Courts are uniform in respect of such constitutional mandate. So far as Article 243P(g) of the Constitution is concerned, it gives the definition of ‘’population’, which means the population as ascertained at the last preceding census, of which the relevant figures have been published. In Ajeet Jaiswal (supra) the question of ‘’population’ was specifically urged that the population will be considered on the basis of the last preceding census. Therefore, the question arose before the Bench what would be the last preceding census i.e. census of 2001 or census of 2011, particularly when the submission of the State was that there is no question of publication of census but data will be supplied, we did not find any difficulty to pass order of election on the basis of Census-2011. However, since this Court was called by all the parties inclusive of Union of India, whose appearance was vehemently opposed by the petitioner no. 1 in the earlier occasion, the Court passed an order on 15th November, 2011, whereunder clarified the position, as aforesaid. Therefore, the question of holding election as per census of 2001 or 2011 is no more res integra. 3. So far as continuance of the office of Municipal bodies is concerned, it can not exceed beyond five years from the date appointed for its first meeting in view of the constitutional mandate of Article 243U(1) of the Constitution. In Anugrah Narain Singh (supra) a Division Bench of this Court has delivered the judgement with regard to continuance of office. The question arose therein was with regard to the date of first meeting. The Division Bench has gone through the Uttar Pradesh Municipalities Act, 1916 (in short called as the ‘’Municipalities Act’) and the Uttar Pradesh Municipal Corporations Act, 1959 (in short called as the ‘’Municipal Corporations Act’) and held that after the constitution of the municipality under the Municipalities Act, the District Magistrate has been empowered to convene a meeting of the Municipality for the administration of the oath or affirmation under sub-section (1) of Section 43-D of such Act. This meeting convened by the District Magistrate after the constitution of the Municipalities for administering the oath or affirmation, is the first meeting of the Municipalities and its duration would start running from that date. This meeting convened by the District Magistrate after the constitution of the Municipalities for administering the oath or affirmation, is the first meeting of the Municipalities and its duration would start running from that date. A differentiation has been made between the Municipalities under the Municipalities Act and the Municipal Corporations under the Municipal Corporations Act by saying that in case of Municipal Corporations after administering the oath, the Mayor will hold a meeting to administer the oath of the Corporators and that meeting can be said to be the first meeting and not the meeting, by which the initial oath was administered. In any event, the date of delivery of such judgement is 22nd December, 2005. After the delivery of such judgement, on 11th December, 2006 by U.P. Act No. 38 of 2006 sub-section (4) was introduced in Section 43-D of the Municipalities Act, which is as follows: “43-D. Oath of allegiance and office.—(1) **** (2) *** **** **** (3) *** **** **** (4) Within seven days of the constitution or reconstitution of the Municipality, the District Magistrate shall convene a meeting of the Municipality for the Administration of oath or affirmation in the manner prescribed in this section and such meeting shall be presided over by the District Magistrate or in his absence by a Deputy Collector nominated by him in this behalf. The meeting, so convened shall be treated as the First Meeting of the Municipality. (5) **** ***** ****” By way of same Act i.e. U.P. Act No. 38 of 2006, a similar provision has also been introduced under Section 85 of the Municipal Corporations Act, 1959 by inserting sub-section (1-A) therein, as follows: “85. Oath of allegiance to be taken by the Mayor and members.—(1) **** **** (1-A) Within seven days of the constitution under Section 9 or reconstitution under Section 538 of the Corporation the Municipal Commissioner shall convene a meeting of the Municipal Corporation. The Commissioner of the Division or in his absence the District Magistrate shall administer the oath or affirmation to the Mayor and thereafter the Mayor shall administer the oath or affirmation to corporators who have been declared elected. Such meeting shall be presided over by the Commissioner of the Division or in his absence the District Magistrate. The meeting so convened, shall be treated as the First Meeting of the Municipal Corporation. Such meeting shall be presided over by the Commissioner of the Division or in his absence the District Magistrate. The meeting so convened, shall be treated as the First Meeting of the Municipal Corporation. (2) *** **** **** (3) *** **** ****” 4. These two amendments have been made by the Legislature consciously to give effect of the constitutional mandate regarding first meeting and to avoid lot of disputes regarding fixation of the date of first meeting. Legislature made it clear to avoid any tactical ploy not to hold the first meeting quickly to take the advantage of the longer period than the period of five years by the elected bodies. A question may arise that when the Parliament and the State Legislatures continue as Care-taker Government after the expiry of the period and/or declaration of election, therefore, why in the cases of Municipalities, being self-Government, such principle will not be applied. We are of the view, whatever logical argument be it, but the same can not prevail over Constitutional mandate, codified law and existing judgments. In the cases of Municipalities and Municipal Corporations, Article 243U of the Constitution is specific for a period of five years and no longer, which appears to be mandatory in nature. The Constitution Bench of the Supreme Court in Kishansing Tomar (supra) has held that in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution. The Supreme Court also said that the provision of the Constitution to hold the election before expiry of the period is mandatory in nature. Therefore, the Supreme Court has considered two parts; one part is to compel the State and the State Election Commission to hold the election for every five years from the date of first meeting, and another is not to allow the nominated bodies to continue. Converse of both are mischievous acts as per the Constitution Bench judgement of the Supreme Court. Therefore, one can not be allowed to say that as because one mandate has not been followed by the State and/or State machineries, the Municipal bodies will be entitled to continue with the office. Converse of both are mischievous acts as per the Constitution Bench judgement of the Supreme Court. Therefore, one can not be allowed to say that as because one mandate has not been followed by the State and/or State machineries, the Municipal bodies will be entitled to continue with the office. In Anugrah Narain Singh (supra) also it has been categorically held that no such provision has been made in Article 243U(1) of the Constitution and, therefore, necessary corollary is that the framers of the Constitution did not want that the elected Municipality should be allowed to continue to hold the office till new elected body assumes charge. 5. So far as Section 10-A(4) of the Municipalities Act and Section 8(4) of the Municipal Corporations Act are concerned, it has been repeatedly held by the Constitution Bench of the Supreme Court in Kishansing Tomar (supra) and also by the Division Bench of this Court in Anugrah Narain Singh (supra) that such situation is arising out of the contingency. In case of dissolution, Clause 3(b) of Article 243U of the Constitution also prescribes a period of six months for election from the date of dissolution, which has got nothing to do with the period of continuance of the office of Municipality generally for a period of five years and no longer. Continuance for five years and dissolution are two different aspects. Therefore, both can not occupy the same field. When one is the rule, the other one is the exception and the exception has been provided in the Constitution. Unavoidable circumstances are products of legal fiction based on the erstwhile amendments, which were declared by the High Court as valid pieces of legislation. The Constitution Bench of the Supreme Court in Kishansing Tomar (supra) also spoken about calamities. Though natural calamities are to be construed as calamities, but the Supreme Court held that some of the man-made calamities are also available such as rioting and breakdown of law and order etc. We are of the view that present dispute does not arise out of any dissolution or exception. At the time of pronouncing the judgement dated 19th October, 2011 in Ajeet Jaiswal (supra), we have considered whether the situation is man-made or not, and expressly or impliedly we have given answer to that extent. 6. We are of the view that present dispute does not arise out of any dissolution or exception. At the time of pronouncing the judgement dated 19th October, 2011 in Ajeet Jaiswal (supra), we have considered whether the situation is man-made or not, and expressly or impliedly we have given answer to that extent. 6. As regards holding of elections as per the order of the High Court in Ajeet Jaiswal (supra) is concerned, that has reached to the finality. So far as necessary clarifications which were needed are concerned, those have also been made by the Court on 15th November, 2011. Against this background, there was no scope for the Division Bench of the Lucknow Bench to make a stray remark at an interim stage that the judgement of this Court appears to be per incuriam in nature. This type of stray remark is reckless, in violation of judicial discipline and deprecable in nature. It creates confusion in the mind of the people at large and ultimately maligns the image of the High Court. No final judgement of the Division Bench can be said to be per incuriam by an interim order of a coordinate Bench. In 2003 (5) SCC 448 (State of Bihar v. Kalika Kuer alias Kalika Singh and others) it has been held by the Supreme Court that an earlier decision may seem to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and was liable to be ignored. The earlier judgement may seem to be not correct yet it will have the binding effect on the later Bench of coordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways— either to follow the earlier decision or refer the matter to a larger Bench to examine the issue. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways— either to follow the earlier decision or refer the matter to a larger Bench to examine the issue. In 2005 (2) SCC 673 (Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another) a Constitution Bench of the Supreme Court has held that the doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. From 2011 (2) SCC 94 (Safiya Bee v. Mohd. Vajahath Hussain alias Fasi) we find the Supreme Court has held that the learned Judges were not right in overruling the statement of the law by a coordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench. The principles and norms stated with reference to the Supreme Court are equally relevant and applicable to the High Court also. In the matters before the Division Bench of the Lucknow Bench in Sandeep alias Sandeep Mehrotra (supra) no issue was involved with regard to holding of election but to continuance of the office of the Municipalities or appointment of administrator, which is also subject matter of challenge before a different Division Bench of this Court (Vineet Saran and Ran Vijai Singh, JJ.) as assigned by the Hon’ble the Chief Justice. We are not aware whether this information was available to the Bench, which has passed the interim order, or not. To avoid further complication, it was obligatory upon the Division Bench, which has passed the interim order, to direct that all the matters should appear before the Bench which is hearing vires of the order for appointment of the administrator as per order of assignment of the Hon’ble the Chief Justice. To avoid further complication, it was obligatory upon the Division Bench, which has passed the interim order, to direct that all the matters should appear before the Bench which is hearing vires of the order for appointment of the administrator as per order of assignment of the Hon’ble the Chief Justice. There are few exceptions in connection with binding effect of the judgement of a coordinate Bench, such as (i) the order passed by the earlier Division Bench is based on agreement or settlement or consensus on the facts and circumstances of that case; (ii) the order passed on the factual circumstances of the case by the earlier Division Bench clearly held that it will not create any precedent in future; and (iii) the observations of the earlier Division Bench seem to be obiter dicta in absence of any inference in connection thereto, as such can not be called as ratio decidendi. Since no such situation was available before the Division Bench of the Lucknow Bench at the time of passing the interim order, such type of stray remark at an interim stage is not only unwarranted but also have no binding effect upon any of the Benches, hearing the matters, in taking an independent final decision on this issue. 7. Coming back to the fact-situation herein that the oath was administered on 14th November, 2006 and the first meeting was held on 23rd January, 2007, we hold and say that the Division Bench judgement of this Court in Anugrah Narain Singh (supra) still holds the field as good on the score that in case of Municipalities, the meeting convened by the District Magistrate, after the constitution of the Municipalities, for administering the oath or affirmation is to be treated as first meeting. In further, when sub-section (4) has been inserted in Section 43-D of the Municipalities Act by saying that within seven days of the constitution or reconstitution of the Municipalities, the meeting will be convened by the District Magistrate for administration of oath or affirmation and such meeting will be called as the date of first meeting and since such insertion is valid piece of legislation as yet, under no circumstances the date beyond the period of administering the oath or affirmation i.e. 14th November, 2006 can be construed as the date of first meeting. If it is done, it will go against the spirit of the observations of the Constitution Bench of the Supreme Court in Kishansing Tomar (supra) to the extent of two fold mischievous acts i.e. mischief of delaying the election and to allow the nominated bodies to continue. 8. Therefore, the meeting held by the petitioner on 23rd January, 2007 can not be treated to be the cut off date for the purpose of counting the period of five years for continuance of their office of the Nagar Panchayat. Hence, the writ petition is dismissed at the stage of admission, on contest. 9. However, no order is passed as to costs. (Petition dismissed) _____________