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2019 DIGILAW 325 (MP)

Ruksana Patel v. State of M. P.

2019-04-16

SANJAY YADAV, VIVEK AGARWAL

body2019
JUDGMENT Agarwal, J.-- 1. This writ appeal under section 2 of Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth ko Appeal) Adhiniyam, 2005 has been filed by the appellant/petitioner being aggrieved by the order date18.2.2019 passed in writ petition No. 1118/2015, whereby the Writ Petition filed by the petitioner/appellant challenging the first meeting of Municipal Council, Ashokn nagar held on 6.1.2015, in which respondent No. 4 was elected as Vice President on the ground that clear seven days' notice was not given, as required under rule 3 of Madhya Pradesh Municipalities (Election of Vice-President) Rules, 1998 (hereinafter shall be referred to as the 'Rules of 1998') has been dismissed. 2. It is submitted by the learned counsel for appellant that Chief Municipal Officer had issued notice dt. 2.1.2015 informing the members for holding meeting to elect Vice President of the Municipality on 6.1.2015 and this notice is not in compliance of the provisions of law as rule 3 (3) of the Rules of 1998 provides as under: “Notice of the meeting shall be dispatched to every councilor and exhibited at the council office at least seven clear days before the meeting.” 3. It is submitted that since there is violation of such provision, therefore, in terms of the judgment of the Division Bench of this High Court in the case of Awadh Behari Pandey v. State of M. P. and others as reported in 1968 MPLJ 638 , wherein it has been held that provisions of rule 3 of the Rules of 1998 are mandatory, the election of respondent No. 4 is bad in law. 4. Reliance has also been placed on the Full Bench judgment of this High Court in the case of Farooq Mohammad v. State of M. P. and others as reported in 2015 (4) M.P.L.J. 450 , wherein relying on the judgment of the Division Bench of this High Court in the case of Awadh Behari Pandey (supra), it has been held that dispatch of notice to every councillor seven clear days before is mandatory. 5. Placing reliance on such judgments it is submitted that since there was no clear notice of seven days, therefore, the proceedings to elect Vice President were vitiated and therefore the election of respondent No. 4 is bad in law. 6. 5. Placing reliance on such judgments it is submitted that since there was no clear notice of seven days, therefore, the proceedings to elect Vice President were vitiated and therefore the election of respondent No. 4 is bad in law. 6. On the other hand, learned counsel for the respondent State submits that learned Single Judge has dealt with the issue, inasmuch as the petitioner/appellant, after having participated in the election process, had waived her right and she is estopped from challenging the election of respondent No. 4 in the light of the judgment of the Full Bench of this Court in the case of Bhulin Dewangan v. State of M. P. as reported in 2001 (2) MPLJ 372 in the following terms: “15. The general rule is that non-compliance of mandatory requirement results in nullification of the act. There are, however, several exceptions to the same. If certain requirements or conditions are provided by statute in the interest of a particular person, the requirements or conditions, although mandatory, may be waived by him if no public interest are involved and in such a case, the act done will be valid even if the requirements or conditions have not been performed. This appears to be the reason for learned C. K. Prasad, J. in Dhumadhandin v. State of M. P., 1997 (1) Vidhi Bhasvar 49= 1997 (2) MPLJ 175 which was followed by R. S. Garg, J., in Mahavir Saket v. Collector, Rewa, 1998 (2) JLJ 113 for holding that mere non-compliance of the motion of no confidence would not invalidate the whole proceedings.” 7. This view finds support from the judgments of the Hon'ble Supreme Court in the case of Dhirendra Nath Gorai v. Sudhir Chandra Ghosh and others as reported in AIR 1964 SC 1300 , Lachoo Mal v. Radhe Shyam as reported in (1971) 1 SCC 619 , Martin and Harris Ltd. v. VIth Addl. Dist. Judge as reported in AIR 1998 SC 492 , Krishna Bahadur v. M/s Purna Theatre as reported in (2004) 8 SCC 229 , wherein it has been held that there are two exceptions to the general rule that non-compliance of mandatory requirement results in nullification of the act. One exception is when performance of the requirement is impossible; performance is then excused. Another exception is of waiver. One exception is when performance of the requirement is impossible; performance is then excused. Another exception is of waiver. In Dhirendra Nath Gorai (supra), Supreme Court has observed as under: “(7) Even then, the question arises whether an act done in breach of the mandatory provision is perforce a nullity. In Ashutosh Sikdar v. Behari Lal Kirtania, ILR 35 Cal. 61 at p. 72 Mookerjee, J., after referring to Macnamara on Nullity and Irregularities, observed: '.........no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated.' Whether a provision falls under one category or the other is not easy of discernment, but in the ultimate analysis it depends upon the nature, scope and object of a particular provision. A workable test has been laid down by Justice Coleridge in Holmes v. Russell, (1841) 9 Dowl 487, which reads: 'It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity.' A waiver is an intentional relinquishment of a known right but obviously an objection to jurisdiction cannot be waived, for consent cannot give a Court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book On the Interpretation of Statutes, 11th Edn., at p. 375, describes the rule thus: 'Another maxim which sanctions the non-observance of a statutory provision is that cullibet licet renuntiare juri pro se introducto. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book On the Interpretation of Statutes, 11th Edn., at p. 375, describes the rule thus: 'Another maxim which sanctions the non-observance of a statutory provision is that cullibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy.' The same rule is restated in Craies on Statute Law, 6th Edn., at p. 269, thus: 'As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the Court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the Court.' 8. In the present case, since petitioner had participated in the meeting, thus had waived the condition as provided under sub-rule (3) of rule 3 of Rules of 1998, non-compliance of such mandatory provision cannot be said to have caused any prejudice to the petitioner who had actually participated in the election of Vice President and lost such election. Therefore, we do not find any irregularity or illegality in the impugned order passed by the learned Single Judge calling for any interference. Writ appeal fails and is dismissed.