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PETITIONER: ASHOK KUMAR MISHRA & ANR.

       Vs.

RESPONDENT: COLLECTOR, RAIPUR & ORS.

DATE OF JUDGMENT04/09/1979

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) GUPTA, A.C.

CITATION:  1980 AIR  112            1980 SCR  (1) 491  1980 SCC  (1) 180  CITATOR INFO :  RF         1987 SC 251  (23)  RF         1988 SC 268  (30)

ACT:      Constitution of  India 1950,  Art. 226 & Madhya Pradesh Municipal Corporation (Preparation, Revision and Publication of Electoral Rolls and Selection of Councillor.) Rules 1963, Rules 4(1), 4(3)-Notification issued stipulated 20 days time for filing  objections to  electoral roll-Rule  provided  30 days-Writ  Petition   filed  three   days  before   election impugning, electoral roll-Writ if could be issued.

HEADNOTE:      On September  30,  1978  the  Collector  published  the preliminary electoral  roll under  Rule 4(1)  of the  Madhya Pradesh Municipal  Corporation  (Preparation,  Revision  and Publication of Electoral Rolls and Selection of Councillors) Rules,  1963   for  the  purpose  of  holding  elections  in December, 1978 to the Municipal Corporation, and also issued a notice  under the  said rule inviting claims or objections to be  filed within twenty days from the date of publication of the  notice. A  period of  30 days  was however  actually provided in the rule. The final publication of the electoral roll was made on November 16, .1978. After November 25, 1978 a large number of nominations were received by the Returning officer arid  the final list of candidates for the elections with their  symbols was  published on  December 20, 1978 and the poll took place on December 31, 1978.      The appellants (Petitioners 1, 5 and 6) along with some others in  their writ  petition filed  on December  28, 1978 contended  that  the  entire  election  process  had  become vitiated on  account of  the defect  in the notice issued by the Collector  under  Rule  4  (1)  providing  20  days  for preferring claims  and objections  while the rule prescribed 30 days  and that  by  non-compliance  with  this  mandatory requirement, the  entire election  process held on the basis of the  defective  electoral  roll,  became  a  nullity  and therefore the  declaration  of  results  of  the  successful candidates was liable to be quashed.      The High  Court  held  that  the  appellants  were  not entitled to  any relief  as they  had approached  the  Court after undue delay.

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    Dismissing the appeals this Court, ^      HELD: 1.  It is well settled that the power of the High Court under  Art.  226  of  the  Constitution  to  issue  an appropriate writ  is discretionary  and if  the  High  Court finds that  there is  no satisfactory  explanation  for  the inordinate delay,  it may  reject the  petition if  it finds that the issue of writ will lead to public inconvenience and interference with  rights of  others. This rule applies also to a  case in  which the  validity of an election to a local authority is  challenged. The  question whether  in a  given case. the  delay involved  . is  such that it dissentients a person to  relief .  under Art.  226 is  a matter within the discretion of the High Court which as in all matters of 492 discretion has  to exercise  it judiciously  and  reasonably having regard to The surrounding circumstances. [497C-D]      2. If  the appellants  felt that  the notice under Rule 4(3) suffered  from any  illegality, they could have brought it to the notice of the Collector immediately Thereafter. It was open  them to  move the State Government under Rule 6 of the Rules to make an order directing the Collector to follow the provisions  governing the  preparation or  the electoral roll. It  was also  open to  them to  file a  writ  petition immediately after  the -  publication  of  the  said  notice questioning its  legality. None  of the  above  courses  was adopted  by   the  appellants.  Persons  whole  claims  were rejected could  have filed an appeal under Rule 5 before the Collector. No such appeal was presented. [495H-496B]      3. It was only on December 5, 1978 for the first time a letter was  addressed by  one  of  the  petitioners  to  the Collector drawing  his attention to the error that had crept into the  notice under Rule 4(1) of the Rules. By that time, the nominations  had all  been received.  The final  list of candidates for the election with their symbols was published on December  20, 1978. The writ petition itself was filed on December 28,  1978 when  the  poll  had  to  take  place  on December 31,  1978. No satisfactory explanation was given in the course of the petition by the petitioners as to why they delayed the filing;, of the petition till December 28, 1978, even though  they knew that there was an error in the notice issued under Rule 4(1). [496C-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos.  1617 and 1640A of 1979.      Appeals by  Special Leave  from the  Judgment and order dated 20-1-1979  of the  Madhya Pradesh  High Court in Misc. Petition No 884 of 1978.      R. P.  Bhatt and  Sri Narain  for the  Appellant (In CA 1617/79).      G. L.  Sahu and  Miss Maya  Ra for the Appellant (In CA 1640A/79) an R. 54 in CA 1617/79.      Shiv Shankar Rao, H. K. Puri, V. K. Bahl and Miss Madhu Moolchandani For  RR 7-10,  13, 14, 16, 18-25, 27-29, 33-36, 39-42, 45, 49 and 50 in CA 1617 and for RR 7, 10, 13 14, 16, 18-25, 27-29, 33-36, 39-42, 45, 49 & 50 in C.A. 1640A/79.      S. K. Gambhir for RR. 5-6 in CA 1617/79.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  For the  purpose of holding election to the  . Municipal  Corporation of  Raipur in  the month of December, 1978  under the  provisions of  the Madhya Pradesh Municipal  Corporation   Act,  1956   (No.   23   of   1956)

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(hereinafter referred  to as  ’the Act’),  the Collector  of Raipur published the preliminary electoral roll on September 30, 1978 under Rule 4(1) of the Madhya Pradesh Munici- 493 pal Corporation  (Preparation, Revision  and Publication  of Electoral Rolls  and Selection  of Councillors)  Rules, 1963 (hereinafter referred  to as  ’the Rules’) promulgated under the Act  by the Madhya Pradesh State Government and issued a public notice  under Rule  4(1) of  the Rules  calling  upon persons whose  names had  not been included in the electoral roll and  who claimed  to be  included in i. and persons who had any objection to the inclusion of the name of any person in the  said electoral  roll to  submit their  claims and/or objections within  20 days  from the date of the publication of  the   said  notice  before  Shri  K.  P.  Pande,  Deputy Collector, Raipur  who had been authorised to pass orders on such claims  or objections. It was also notified that claims or objections which had not been preferred as required under the Rules  within the  prescribed period  would be rejected. The final  publication of the electoral roll under Rule 8 of the Rules  was done  on November  16, 1978.  Thereafter  the calendar of  events  was  published  on  November  25,  1978 notifying that  the poll,  if necessary  would take place on December  31,   1978  in  all  the  44  constituencies:  Six petitioners including  the  appellants  herein  presented  a petition under  Article 226  of the  Constitution before the High Court  of Madhya  Pradesh at  Jabalpur on  December 28, 1978 requesting  the Court  to make  an order  quashing  the electoral roll  and the  calendar of  events issued  for the purpose of  the said  election and directing the respondents to refrain  from conducting  the poll  on December 31, 1978. They prayed  for a  further direction  to be  issued to  the respondents calling  upon them  to hold  the election  after preparing the  electoral roll  afresh in accordance with the provisions of  the Act  and the  Rules. They also prayed for the issue  of an  interim order  staying the  poll which had been fixed  to be held on December 31, 1978. On December 30, 1978, the  learned Single Judge before whom the case came up for orders  directed the issue of notice of the petition and the stay  application  to  the  respondents  and  issued  an interim order  directing the  respondents not  to notify the results of  the election  under Rule 46 of the Rules pending disposal of the petition. On December 31, 1978, the poll was held and 44 persons were declared elected. Their names were, however, not published under Rule 46 of the Rules in view of the  interim   order  made  by  the  Court.  Thereafter  the successful candidates were also impleaded as respondents and the petition  was amended  by the inclusion of an additional prayer that  the declaration  of the results of the election should also  be quashed.  After the  respondents filed their counter affidavits,  the  petition  was  heard  and  it  was dismissed by  a Division  Bench of the High Court on January 20, 1979.  Aggrieved by  the order passed by the High Court, Ashok Kumar Mishra and Bhagwat Singh Thakur (Petitioners No. 1 and 5 respectively in the 494 petition before the High Court) filed a petition for special leave to  appeal to  this Court  and Purshottam  Lal  Sharma (petitioner No.  6 before  the  High  Court)  filed  another petition.  On   special  leave   being  granted,  the  above petitions were registered as appeals.      One of  the grounds  on which the appellants challenged the validity  of the  electoral roll, the calendar of events and the  declaration of  results of  election was  that  the entire election  process had  become vitiated  on account of

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the defect  in the notice issued under Rule (1) of the Rules notifying that  claims and  objections should  be  preferred within a  period of 20 days from the date of the publication of that  notice when  sub-rule (3)  of Rule  4 of  the Rules prescribed  that   such  claims   and  objections  could  be preferred within  30 days  from the  date of  publication of that notice.  It was  alleged that  by reason  of a  shorter period being fixed for entertaining claims and objections, a large number  or people  who could  have  filed  claims  and objections were  prevented from  preferring them  within  30 days from  the date  of publication  or the notice which was the prescribed  period. It was alleged that petitioner No. 5 had filed  a claim to include his name in the electoral roll on October  19, 1978  and that  was rejected  by the  Deputy Collector without following the procedure prescribed for the purpose. It  was also  alleged that  on October 20, 1978, 34 persons mentioned  in Annexure  P-7  approached  the  Deputy Collector to  entertain their  claim for  inclusion  in  the electoral roll and he refused to receive their applications. It was  contended that on account of noncompliance with Rule 4(3) of  the Rules, which was mandatory, the entire election process held on the basis of the defective electoral roll ’. became a  nullity and  that therefore,  the  declaration  of results of all the 44 successful candidates was liable to be quashed.      On behalf of the respondents, it was pleaded that while it was true that the period of 20 days had been mentioned in the notice  issued under Rule 4(1) of the Rules, it was open to all  the persons who were interested in preferring claims or objections  to file  them within 30 days from the date of publication of  the notice  under Rule  4(1). It was pleaded that pursuant to the notice published under Rule 4(1) of the Rules only  four claims  including that  of petitioner No. S were  received   by  the  Deputy  Collector;  that  all  the applicants were  asked to  appear on  October  30,  1978  to substantiate their  claim and  that  the  applications  were disposed of on October 30, 1978. The claim of petitioner No. 5 was  rejected as  no evidence  in support of his claim was produced before the Deputy Collector. It was further pleaded that no  other claims or objections were preferred either on October 20,  1978 or  on any  other sub  sequent  date.  The allegation that 34 persons had approached the Deputy 495 Collector requesting  him to  receive their applications for inclusion of  their names  in the  electoral roll on October 20,  1978   was  denied.   They  further  pleaded  that  the authorities would  have taken action to correct the error in the notice  issued under  Rule 4(1) of the Rules granting 20 days’ time  to prefer  claims and  objections if it had been brought to their notice by the petitioners immediately after it was noticed by them. The petitioners were not entitled to any relief  under Article 226 of the Constitution on account of the  inordinate delay involved in the presentation of the writ petition.      The High  Court after hearing the parties dismissed the petition holding  (i) that  respondent  No.  2,  the  Deputy Collector had asked petitioner No. S to appear before him on October 30, 1978 and that as he did not produce any evidence in support of his claim, his application was dismissed, (ii) that none of the persons mentioned in Annexure P-7 preferred any claim  before respondent  No. 2  on October 20, 1978 and that he did not refuse to receive any such claim and that no person preferred  any claim  or objection  after October 19, 1978 before  respondent No. 2 and (iii) that the petitioners were not  entitled to  any relief as they had approached the

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Court after undue delay.      Since one  of the  grounds  on  which  the  High  Court dismissed the  petition was  that the  petitioners were  not prompt in  moving the  High Court,  we shall  first  examine whether the  High Court  was right  in doing so, since if we agree with  the High  Court on  the above question, it would become unnecessary  to go  into the  other questions  raised before us.      The Collector  published the  notice under Rule 4(1) of the Rules  on  September  30,  1978  and  also  called  upon interested  persons   to  prefer  claims  and/or  objections thereto within  a period  of 20  days. In paragraph 7 of the notice, it was mentioned that claims and objections received beyond the  prescribed period  would not  be considered. The period prescribed for preferring claims and objections under Rule 4(3) was 30 days. It is not the case of the petitioners that they  did not know immediately after the publication of such notice  that in the said notice a period of 20 days had been mentioned  in its  preamble as  the period within which the  claims   and  objections  could  be  preferred  and  in paragraph 7  thereof it  had been stated that any such claim or objection  filed beyond  the prescribed period was liable to be  rejected. If  they felt that the said notice suffered from any  illegality, they  could have  brought  it  to  the notice of the Collector immediately 496 thereafter. It was open to them to move the State Government under Rule  6 of  the Rules  to make  an order directing the Collector  to   follow  .   the  provisions   governing  the preparation of  the electoral roll. It was also open to them to file a writ petition immediately after the publication of the said  notice questioning its legality. None of the above courses was adopted by the petitioners. Persons whose claims were rejected could have filed an appeal under Rule S before the Collector.  No such  appeal  was  presented.  The  final electoral roll  was published  on November  16, 1978. It was notified that  the nominations  could be  filed on and after November 25,  1978 and  the poll,  if necessary,  would take place on December 31, 1978. After November 25, 1978, a large number  of   nominations  were  received  by  the  Returning officer. It  was only on December 5, 1978 for the first time that a  letter was  addressed by  petitioner No.  6  to  the Collector drawing  his attention to the error that had crept into the  notice published  under Rule 4(1) of the Rules. By that time,  the nominations had all been received. The final list of  candidates for  the election with their symbols was published on December 20, 1978. The writ petition itself was filed on  December 28,  19?8 when the poll had to take place on December 31, 1978. When the petition came up for order on December 29,  l 978,  it had to be adjourned to December 30, 1978 at  the request  of the counsel for the petitioners. No satisfactory explanation  was given  in the  course  of  the petition by  the petitioners  as to  why  they  delayed  the filing of  the petition  till December  28, 1978 even though they knew that there was an error in the notice issued under Rule 4(1)  of the  Rules in  the month of October, 1978 more than two  months before  the date  on which i, was filed. It was, however,  argued before  us relying  upon a  news  item which had  appeared in  a daily  called  ’Nav-Bharat’  dated October 21,  1978 in  which  there  was  a  reference  to  a statement made  by the Minister for Local Self Government of Madhya Pradesh regarding the irregularity in the division of Raipur town  into different  wards for purposes of election. It was  also stated  therein  that  in  the  course  of  the discussion  with   the  press-reporters  on  that  day,  the

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Minister had  stated that  he had directed the Commissioner, Raipur Division, Raipur that the date for inclusion of names in the electoral roll could be extended if the election date was not  affected. There was a further reference to dates of election  to   Bilaspur  Municipal   Committee  having  been adjourned  twice  before.  It  is  difficult  to  place  any reliance  on   the  above  news  item  for  the  purpose  of concluding that  the Collector,  Raipur  had  been  informed about the defect in the notice issued under Rule 4(1) of the Rules by  October 21,  1978. The  other  documents  produced alongwith the writ petition referred to omissions of certain names from the electoral roll. They do not show that any 497 of the  petitioners had  raised any objection with regard to the date  within which  the claims  and objections  could be preferred to  the electoral roll mentioned in the notice. We have, therefore, to proceed on the basis that it was only on December S,  1978 for  the first  time that the attention of the Collector  was drawn to the said error and that the writ petition itself  was presented  on  December  28,  1978.  No satisfactory reason  for  the  delay  was  set  out  in  the petition.      It is  well settled  that the  power of  the High Court under  Article   226  of   the  Constitution   to  issue  an appropriate writ  is discretionary  and if  the  High  Court finds that  there is  not satisfactory  explanation far  the inordinate delay,  it may  reject the  petition if  it finds that the issue of Writ will lead to public inconvenience and interference with  rights of  others. This rule applies also to a  case in  which the  validity of an election to a local authority is  challenged. The  question whether  in a  given case the  delay involved  is such  that  it  dissentients  a person to  relief under  Article 226  is a matter within the discretion of  the High  Court which  as in  all matters  of discretion has  to exercise  it judiciously  and  reasonably having regard to the surrounding circumstances.      We are  not, therefore,  impressed by the argument that the petitioners  were entitled  to the  issue  of  the  writ prayed for  as of right and the delay in filing the petition should have been ignored.      On the  facts and  in the circumstances of the case, we are of the view that the writ petition was rightly dismissed by the  High Court  as there was no satisfactory explanation for the  delay in  preferring it.  We,  therefore,  find  it unnecessary to deal with the other points urged before us.      For the  foregoing reasons,  the appeals  fail and  arc dismissed. We make no order as to costs. N.V.K                                      Appeals dismissed 498