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2016 DIGILAW 3446 (ALL)

MOHD. ISLAM v. STATE OF U. P.

2016-10-11

V.K.SHUKLA, VIKRAM NATH

body2016
JUDGMENT By the Court.—Mohd. Islam as well as Mohd. Asif Khan are before this Court, assailing the validity of the Notification dated 5.10.2016 issued by the State Election Commissioner, U.P. Lucknow notifying bye-election to fill up the post of President/Chairman, Nagar Palika Parishad, Deoband, District Saharanpur. 2. Petitioners claim that they are recorded elector of Nagar Palika Parishad, Deoband, District Saharnpur and they are before this Court to assail the validity of the illegal exercise being undertaken by the State Election Commissioner, U.P. Lucknow by proceeding to hold the election of President/Chairman of Nagar Palika Parishad, Deoband, District Saharanpur. Crated 3. Earlier election programme had been notified on 25.5.2012 for holding the election of office bearer of Nagar Palika Parishad, Deoband, District Saharanpur and pursuant thereto election for the post of President/Chairman and Sabhasad of Nagar Nigam has been held wherein Maviya Ali was declared elected as Chairman on 7.7.2012 by returning officer on account of obtaining majority vote and oath of the office was also administered in the first meeting of Nagar Palika Parishad, Deoband, District Saharanpur. 4. According to Section 10-A of U.P. Municipalities Act, 1916 the term of the municipality is five years from the date of its first meeting and no longer unless sooner it is dissolved and as per petitioners, the term of Nagar Palika Parishad, Deoband, District Saharanpur will come to an end in July, 2017. Petitioners submit that in the general election of U.P. Legislative Assembly that was also held in the year 2012, therein Shri Rajendra Singh Rana was elected as member of Legislative Assembly from 5-Deoband Assembly constituency but subsequently he died on 27.10.2015 therefore, a casual vacancy arose resulting in holding bye-election on the said post which was held on 13.2.2016. Petitioners further submit that Maviya Ali the then sitting President of Nagar Palika Parishad, Deoband, District Saharanpur contested the aforesaid Bye-Election from 5-Deoband Assembly Constituency of Saharanpur and was declared duly elected member of Legislative Assembly for aforesaid 5-Deoband Assembly Constituency on 16.2.2016. Petitioners further submit that Maviya Ali the then sitting President of Nagar Palika Parishad, Deoband, District Saharanpur contested the aforesaid Bye-Election from 5-Deoband Assembly Constituency of Saharanpur and was declared duly elected member of Legislative Assembly for aforesaid 5-Deoband Assembly Constituency on 16.2.2016. On account of Maviya Ali the then sitting President of Nagar Palika Parishad, Deoband, District Saharanpur being elected on the post of Member of Legislative Assembly therefore, keeping in view of the provision of Section 13-DD of U.P. Municipalities Act, 1916 Maviya Ali resigned from the post of President and District Magistrate, Saharanpur appointed Up-Ziladhikari Deoband, District Saharanpur as the Administrator on 16.3.2016 and currently Up-Ziladhikari Deoband, District Saharanpur is functioning as Administrator till date. This much is also reflected that in the vacancy that has so occurred on account of Maviya Ali, Chairman being elected as Member of Legislative Assembly, State Election Commission has taken steps for holding bye-election to fill up the post of Chairman of Nagar Palika Parishad, Deoband District Saharanpur and undertaking of said exercise has impelled the petitioners to be before this Court by assailing the said election in question by submitting before this Court that entire exercise of holding of election in question being in contravention of Section 13-I of the U.P. Municipalities Act, 2016 are liable to be kept on hold. 5. Mention has been made in Chamber to take up the matter. Said mention has been accepted by this Bench during “Dussehra Vacation” and matter thereafter has been heard extensively. 6. Sri N.K. Pandey learned counsel for the petitioners appearing alongwith Sri Mohd. Kalim and Sri Abrar Ahmad Siddiqui, Advocates contended with vehemence that in the present case once remaining tenure of elected body i.e. Nagar Palika Parishad, Deoband, District Saharanpur is less than one year, then there is no occasion or justification to hold the election of the President/Chairman and interim arrangement that has been so made, same should be permitted to continue and as declaration of election programme is in breach of statutory provisions, as such this Court should intervene in the matter by putting on hold futile exercise of holding of election. 7. 7. Sri Rama Nand Pandey, learned counsel for the State on the other hand contended that election process is already on, mid way interference should not at all be made, and after election process is over, then validity of the election can be challenged by way of election petition and further provision of Section 13-H and 13-I of the Municipalities Act, 1916 are not at all applicable or attracted in the present case as bye-election is being held for the office of President, qua the casual vacancy that has occurred for the office of the President and accordingly action i.e. being so taken is strictly in consonance with the statutory provision as contained under Section 44-A of U.P. Municipalities Act, 1916 and in view of this, no interference be made. 8. Part IX and IX-A of the Constitution have brought, through Articles 243 to 243 ZG, the Panchayats, Zila Parishad and Municipalities as constitutional instrumentalities to elongate the socio-economic and political democracy under the rules of law. The local bodies constitute an integral executive to implement the directive principles contained in Part IV through planned development under the rule of law. Apex Court in the case of Ahmedabad Municipal Corporation, AIR 1997 SC 152 , has clearly held that the Gram Panchayats, Zila Parishad and Municipalities are local bodies. In order to have participation of people at all level for fulfilling the saying that “democracy is for the people, of the people and by the people” and it is will of the people that is paramount for the purposes of self governance for urban areas, Municipalities have been created and same forms part of Local Self Government. In the State of U.P. as far as Municipalities are concerned, affairs of the same has to be run and managed in consonance with the provisions as are contained under U.P. Municipalities Act, 1916. Section 2(9) defines municipality as an institution of self Government referred to in clause (e) of Article 243-P of the Constitution. Section 2 (9-A) defines territorial area of a municipality. Section 2(9-B) deals with “Municipal Council” by defining that same means the Municipal Council constituted under sub-clause (b) of Article 243-Q of the Constitution. Section 2(9-C) deals with the Nagar Panchayat as meaning the Nagar Panchayat constituted under sub-clause (a) of Clause (1) of Article 243-Q of the Constitution. Section 2 (9-A) defines territorial area of a municipality. Section 2(9-B) deals with “Municipal Council” by defining that same means the Municipal Council constituted under sub-clause (b) of Article 243-Q of the Constitution. Section 2(9-C) deals with the Nagar Panchayat as meaning the Nagar Panchayat constituted under sub-clause (a) of Clause (1) of Article 243-Q of the Constitution. Chapter-II of the Municipalities Act, 1916 deals with Constitution and Governance of Municipalities. Section-9 deals with composition of Municipality and Sub-Section (a-1) of Section 9 clearly mentions that a Municipality shall consist of a President, who shall be its Chairperson and the elected members, whose number shall, in the case of a Nagar Panchayat, be not less than 10, and not more than 24; and in the case of a Municipal Council, be not less than 25 and not more than 55, as the State Government may, by notification in the official Gazette specify. There are four classes of members as specified in sub-section (a), (b), (c) and (d) of Section 9 of the said Act. The members as enumerated in Section 9 includes not only the elected members but also ex officio members as contemplated by sub-section (c) and (d) of Section 9 of the said Act, it also includes the nominated members. Under the proviso to Section 9 of the said Act, it has been specifically provided that if none of the members elected under clause (b) is a woman, the State Government may, by a like notification nominate one woman as a member of the Board and thereupon, the normal composition of the Board shall stand varied to that extent. Nominated members have been made ineligible for voting in the meetings of the municipality vide proviso to Section 9 (1) (e) of the Act. Section 10-A deals with term of municipality by providing that every municipality shall, unless sooner dissolved under Section 39, continue for five years from the date appointed for its first meeting and no longer. Section 10 (2A) proceeds to mention that an election to constitute a municipality shall be completed before the expiry of its term specified in sub-section (1) or before the expiration of a period of six months from the date of its dissolution. Section 10 (2A) proceeds to mention that an election to constitute a municipality shall be completed before the expiry of its term specified in sub-section (1) or before the expiration of a period of six months from the date of its dissolution. Provided that where the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any election under this sub-section for constituting the municipality for such period. Section 10(3) deals that municipality constituted upon the dissolution of a municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved municipality would have continued under sub-section (1), had it not been so dissolved. Section 12-A deals with election of member. Section 13-A deals with general election. Section-13-B deals with Superintendence etc. of the conduct of the elections. Section 13-C deals with qualification for election of member. Section 13-D deals with disqualification for membership. Section13-E deals with Right to vote. Section 13-H deals with Bye election and Section 13-I deals with certain casual vacancies not to be filled. For ready reference Section 13-H and 13-I of the U.P. Municipalities Act, 2016 is being extracted below : 13-H. Bye Elections : (1) Subject to the provisions of sub-section (2) of Section 13-I, when the seat of a member, elected to a municipality becomes vacant or is declared vacant or his election is declared void, the State Election Commission shall in consultation with the State Government by a notification in the official gazette, call upon the ward concerned to elect a person for the purpose of filling the vacancy caused before such date as may be specified in the notification and the provisions of this act and of the Rules and order order made thereunder, shall apply, as far as may be, in relation to the election of member to fill such vacancy. (2) If the vacancy so caused be a vacancy in a seat reserved in any such ward for the Scheduled Castes, the Scheduled Tribes the Backward Classes or the women the notification issued under sub-section(1) shall specify that the person to fill that seat shall belong to the Scheduled Castes the Scheduled Tribes, the Backward Classes or the woken, as the case may be. 13-I. Certain casual vacancies not to be filled : Where a vacancy occurs on a municipality by reason of death, resignation, removal or avoidance of an election of the elected member and the term of office of that member would, in the ordinary course of events, have determined within one year of the occurrence of the vacancy, such vacancy may be left unfilled. 9. Election of President has been separately dealt with in U.P. Municipalities Act, 1916. Section 43 deals with the election of President by mentioning that the President of the municipality shall be elected on the basis of adult suffrage by the electors in the municipal area. Sub-section (3) of Section 43 mentions that the provisions of this Act and the Rules framed thereunder in relation to election of member shall, mutatis mutandis, apply in relation to the office of President. Section 43-AA deals with qualification for Presidentiship. Section-43-C deals with power of the State Election Commission to make order regarding election of President. Section 43-D deals with oath of allegiance and office. Section-44-A deals with bye election of President. Section 44A of U.P. Municipalities Act, 1916 being relevant is extracted below : 44-A. Bye-election of President : If a casual vacancy occurs in the office of the President owning to death or resignation or any other cause, the President shall be elected as soon as may be thereafter, but not later than three months from the date of occurrence of the said vacancy, in the manner provided in Section 43. 10. Section 46 deals with the terms of office of a President. Section 47 deals with resignation of President. Section 48 deals with removal of President. Section 49 provides for that the President to be ex officio member of the Municipality. Section 50 deals with functions of a Municipality that must be discharged by the President. Section 51 deals with Additional duties of the President. Section 51-A deals with authority to president to address State Government on question of general public interest. Section 52 deals with power of Municipality to require report, etc. from President. Section 53-A deals with delegation by President of powers under clause (a) of Section 50 by mentioning that a President may empower by general or special order any servant of the Municipality to exercise under his control any one or more of the powers specified in clause (a) of Section 50. from President. Section 53-A deals with delegation by President of powers under clause (a) of Section 50 by mentioning that a President may empower by general or special order any servant of the Municipality to exercise under his control any one or more of the powers specified in clause (a) of Section 50. Section 54-A deals with temporary arrangement of certain cases. Section 56 deals with notification of elections, nominations and vacancies. 11. On the parameter of provisions quoted above, case in hand has been examined. Under the scheme of things provided for, President has been dealt with separately under the provisions of U.P. Municipalities Act, 1916. President of municipality occupies unique position as by virtue of being President he/she is to act as Chairman who is obligated to perform various statutory functions. Municipality in question would also comprise of elected member, whose number has to be fixed by State Government by means of notification. The tenure of municipality is five years from the date of its first meeting and no longer unless sooner it is dissolved. In case when the seat of a member, elected to a municipality becomes vacant or is declared vacant or his election is declared void, the State Election Commission shall in consultation with the State Government by a notification in the official gazette, call upon the ward concerned to elect a person for the purpose of filling the vacancy caused before such date as may be specified in the notification and the provisions of this act and of the Rules and order made thereunder, shall apply, as far as may be, in relation to the election of member to fill such vacancy. Section 13-H is mandatory in nature. Embargo has been placed by means of Section 13-I of the Municipalities Act, 1916 by providing that where a vacancy occurs in a municipality by reason of death, resignation, removal or avoidance of at election of the elected member and the term of the office of that member, would in the ordinary course of events, have determined within a one year of the occurrence of the vacancy, such vacancy may be left unfilled. The provision in question thus confers authority on the State Election Commission to leave the vacancy unfilled. The provision in question thus confers authority on the State Election Commission to leave the vacancy unfilled. Holding of election to the casual vacancies where the term of office of that member is determinable within one year of the occurrence of vacancy, has been left to the discretion and prerogative of State Election Commission. “May be left unfilled” cannot be read as “Shall be left unfilled”. The use of words “may be left unfilled” clearly indicates that it is directory in nature and by holding the same to be directory the object of legislation is not being defeated rather if elections are held the said municipal area (ward) would go represented through its member. 12. Issue before us is as to whether ipso facto Section 13-H and 13-I of U.P. Municipalities Act, 1916 could be pressed vis-a-vis office of the President. Under the scheme of things provided for, fact of the matter is that the said provision would be of no avail for the simple reason, as already mentioned above, President occupies unique position and Section 13-H of the U.P. Municipalities Act, 1916 provides for bye-election by State Election Commission in reference of seat of a member elected to a municipality when same becomes vacant or is declared vacant or election is declared void, then to call upon the ward concerned to elect a person for the purpose of filling the vacancy. Section 13-I of U.P. Municipalities Act, 1916 is an exception to Section 13-H of U.P. Municipalities Act, 1916 and therein holding of by-election has been left to the discretion of State Election Commission. Sub-section (3) of Section 43 applies the provisions of the Act and Rules mutatis mutandis in relation to the election to the office of President. We have already expressed our view that the provisions of Section 13-I are directory in nature. Section 44-A of the Act deals with bye-election of President by indicating that if a casual vacancy occurs in the office of the President owning to death or resignation or any other cause, the President shall be elected as soon as may be thereafter, but not later than three months from the date of occurrence of the said vacancy, in the manner provided in Section 43. Thus under the scheme of things provided for outer limit has been provided and election has to be held and the reason is obvious that office of the President cannot be left vacant for the reason that as per U.P. Municipalities Act, 1916, President is required to discharge various statutory functions. Office of member cannot be kept at par with the office of President, as the Constitution and U.P. Municipalities Act, 1916 makes distinction between office of elected member and office of elected President. Chapter III deals with conduct of business in the Municipalities Act, 1916, wherein Sections 86, 87 deals with meeting of Municipality, wherein President is authorised to convene meeting whenever he/she thinks fit and also to adjourn the meeting. President is also obligated to submit report name of member of Municipality who has absented himself from three consecutive meetings or three consecutive months without obtaining sanction from the Municipality. Section 88 deals with quorum which provides that the quorum shall not be less than one-third of total umber of Municipality. President has the right to adjourn meeting for want of quorum to another date, and on the adjourned date business postponed for want of quorum can be transacted. President of Municipality is the master of holding proceedings under the scheme of things provided for. Section 44-A is a special provision covering the field of bye-election to the office of President of the Municipality and it is settled preposition of law that special provisions would override the general provisions. 13. In our considered opinion Section 13-H and 13-I of U.P. Municipalities Act, 1916 would not at all be applicable or attracted, inasmuch as for holding of by-election of the office of President, exercise has to be undertaken and has been undertaken under specific provision provided for under Section 44-A of the Act. The view that has been taken by us also stands supported by a co-ordinate bench judgement of this Court in the case of Smt. Husna Bano v. State of U.P. Misc. Bench No. 17299 of 2016 judgement dated 3.8.2016, reported in 2016(8) ADJ 216 (DB)(LB), wherein similar arguments advanced has been repelled by mentioning as follows : “A perusal of Section 44-A would therefore clear any doubt that it is a special provision that has been made in relation to the office of Chair person, namely the President of Municipality. Bench No. 17299 of 2016 judgement dated 3.8.2016, reported in 2016(8) ADJ 216 (DB)(LB), wherein similar arguments advanced has been repelled by mentioning as follows : “A perusal of Section 44-A would therefore clear any doubt that it is a special provision that has been made in relation to the office of Chair person, namely the President of Municipality. Sub-Section (3) of Section 43 applies to the provisions of the Act and Rules in relation to the election of President, but at the same time, the provisions of Section 44-A exclusively defines the bye-election of President and therefore, the same would not be governed by the provisions of bye-elections of Members under Section 13-I." 14. In view view of this, challenge made on this score is unsustainable. Coupled with this, we proceed to take note of the fact that notification of election has been done in exercise of constitutional authority under Article 243 read with Section 43A of the Act, wherein 13.10.2016 is fixed for collecting the form, 14.10.2016 is fixed for nomination, 17.10.2016 is fixed for withdrawal of the nomination, 18.10.2016 is fixed for allotment of symbol, 3.11.2016 is fixed for voting and 5.11.2016 is fixed for counting of votes and declaration of result. Once election process is on, then there is no occasion or reason for us to interfere in the mid way. 15. Apex Court in Civil Appeal No. 1629 of 2016 Shaji K. Joseph v. V. Vishwanath and other, decided on 22.2.2016 reported in 2016 (4) SCC 429 , has approved its earlier view in the case of N.P. Ponnuswami v. Returning Officer, AIR 1952 SC 64 ; Shri Sant Sadguru Janardan Swami (Moningiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and others, 2001 (8) SCC 509 , that once the election process starts, it would not be proper for the Courts to interfere with election process in following terms : “The judgement referred to herein above clearly show that the settled provision of law to the effect that whenever the process of election starts, normally Court should not interfere with the process of election for the simple reason that if the process of election is interfered with by the Courts, possibly no election would be completed without Court’s order. Very often for frivolous reason candidates or others approach the Courts and by virtue of interim order passed by Courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforesaid reasons this Court has taken a view that all disputes with regard to election should be dealt with only after completion of election”. 16. With the above, present writ petition stands dismissed. Registrar General of this Court should on re-opening of the Court get reporting done, number be allotted to writ petition. Defects, if any, pointed out, the same be asked to be removed by petitioners and thereafter if certified copy of the order is asked for, copy of the same be supplied on payment of usual charges. No orders as to cost.