http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: ATMA SINGH & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT02/04/1981

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) CHANDRACHUD, Y.V. ((CJ) ERADI, V. BALAKRISHNA (J)

CITATION:  1981 AIR 1173            1981 SCR  (3) 340  1981 SCC  (2) 657        1981 SCALE  (1)566

ACT:      Punjab Municipal  Act, 1911,  read with Election Rules, 1952 and  Delimitation of  Wards  of  Municipalities  Rules, 1972-State Government  notifies inclusion  of certain  local areas within  the limits  of Sunam  Municipality under  sub- section (3)  of  section  5  of  the  Act-operation  of  the notification stayed  by the  High Court  and, therefore, the State Government  without  reconstituting  the  Municipality into new  wards held  elections on  the  basis  of  the  old municipal limits  in view  of the obligatory proviso to sub- section (3)  of section 13 of the Act inserted by Punjab Act 10 of  1978 as  amended by Punjab Act 2 of 1979-Propriety of the  action   of  the   State  to   hold  elections  in  the municipality without  delimitation of  wards and preparation of fresh electoral rolls and validity of the elections.

HEADNOTE:      In exercise  of their  powers under  sub-section (3) of section 5  of the  Punjab Municipal  Act,  1911,  the  State Government by its Notification dated August 2, 1976 directed inclusion, in  Sunam  Municipality,  of  eight  local  areas including Moranwali  Gram Panchayat,  which  challenged  the validity of  the said  notification by a writ petition filed before the High Court and obtained stay of operation.      Under the  Election Rules  of 1952 and the Delimitation of Wards  of Municipalities Rules, 1972, whenever there is a change  in   the  limits   of  the  municipality  the  State Government cannot  proceed to  hold election  of councillors without  delimitation   of  the   municipality  into  wards. However, since  proviso to subsection 3 of section 13 of the Act, inserted  by Punjab Act 18 of 1978 as amended by Punjab Act 2 of 1979 made it obligatory for the state Government to hold the  election before June 30, 1979, along with those of the 42  other municipalities the election of the councillors of the  Sunam Municipality was also held on June 10, 1979 on the basis  of the  old municipal  limits, that  is, from the existing 15 wards.      On June  23, 1979  the appellants who seek to represent about 1,000  voters from  the local areas newly added to the municipal limits,  filed a  writ petition  in the High Court challenging the election as null and void on the ground that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

there was  no delimitation  of wards  and no fresh electoral rolls were  prepared. The High Court by its order dated July 10, 1979  declined to  set aside  the  elections  held,  but directed that  the local areas be given representation under sub-section(5) 341 of section  5 of  the Act.  Hence the appeal after obtaining special leave of the Court.      Dismissing the appeal, the Court ^      HELD: 1.  The State Government without reconstituting a municipality into  new  wards  cannot  proceed  to  hold  an election of  councillors, when  there is an extension of the municipal limits. [346 C]      2. The  whole purpose  of delimitation  of municipality into wards is to ensure that every citizen should get a fair representation in  them municipalities.  When a municipality in reconstituted  by the  inclusion of any local area within the limits  of  a  municipality  under  sub-section  (3)  of section 5  or by  the exclusion  of any  local area from the limits of  a municipality  under section  7, that  is,  when there is  an alteration  of the  limits of the municipality, there must  of necessity  be a division of the reconstituted municipality into  new wards  without  which  the  elections cannot be  held. There  can be no disenfranchisement of part of the electorate of a municipality. [345 C-D]      3. But,  in the  instant case, the said principle could not be  applied due to the stay order passed by single Judge of the  Punjab High  Court which was in force from August 2, 1978 to  October 23,  1978 and thereafter till April 1, 1980 consequent to  the order  of stay  of dispossession  by  the Division Bench,  dated December  19,  1978  in  the  Letters Patent Appeal  preferred by  the Gram  Panchayat, Moranwali. When a  local area sought to be brought within the limits of the municipality  by the  issue of a notification under sub- section (3)  of section  5 was  kept out  of such  limits by reason of  the stay order passed by the Division Bench there could, obviously,  be no  delimitation of  the  municipality into new wards. [346 C, D; 347 B, A]      4. To  contend that  with the  dismissal  of  the  writ petition on  October 23, 1978, the impugned notification was brought into  effect and  therefore,  the  State  Government could not  proceed with  election  without  delimitation  of wards and preparation of fresh electoral rolls is incorrect. It is equally incorrect to say that with the vacation of the stay by  the dismissal of the Letters Patent Appeal on April 1, 1980 the whole election would be invalidated. [346 F, 347 E]      5. The  Election held  on June  10, 1979 were valid and the councillors  elected are entitled to run their full term of  five   years  as  provided  in  section  13.  The  State Government acted  with the best of intentions in deciding to hold the  elections.  The  State  Government  had  no  other alternative but  to hold  the election of the councillors on the basis  of the  existing limits of the municipality, that is, from  the existing  15 wards  due to  the  amendment  of proviso to subsection (3) of section 13 of the Act by Punjab Act 2  of 1979  which  made  it  obligatory  for  the  State Government to  hold the  elections before June 30 1979. [347 E,D]      Bhaichandbhai Maganlal Shah v. The State of Gujarat and Ors., 8 Guj L.R. 210, approved.      6.  In  view  of  the  fact  that  a  large  number  of inhabitants of  the local areas brought within the municipal limits under sub-section (3) of section 5 of the Act,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

342 who were otherwise eligible to be enrolled as voters but for the stay  by the  High Court, have thereby been deprived not only of  their valuable  right to  vote at  the election but also the  right to  contest as a candidate for election as a councillor from  any of  the wards of the municipality or to the office of the President or the Vice-President, the Court directed;  (1)   that  the   local  areas  included  in  the municipality should  be formed  into a  ward  or  wards  and representation  given  to  them  under  sub-section  (5)  of section 5  of the Act; (ii) that the term of the councillors so elected  from such  local areas shall be co-terminus with the  term  of  the  councillors  already  elected  from  the existing 15  wards and  (iii) that  this shall  be a  purely interim arrangement necessitated by the somewhat unfortunate stay order  passed by  the High  Court and that obviously it cannot extend  beyond the  term of the present council. [347 G, 348 B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1958 of 1980.      Appeal by  Special Leave  from the  Judgment and  Order dated 20th July 1979 of the Punjab and Haryana High Court in Civil Writ Petition No. 2135/79.      P. P. Rao and C. M. Nayar for the Appellants.      O. P. Sharma and M M. Dhillon for Respondents Nos. 1-5.      S. M.  Ashri &  G. K.  Bansal for  the other  appearing Respondents.      The Judgment of the Court was delivered by      SEN, J. This appeal by special leave from a judgment of the Punjab  & Haryana  High Court, raises a question of some complexity. The  question is  when there  is a  notification issued under sub-s. (3) of s. 5 of the Punjab Municipal Act, 1911, for inclusion of certain local areas within the limits of a  municipality, whether  it is permissible for the State Government to  hold elections  in the  municipality  without delimitation of  wards and  preparation of  fresh  electoral rolls. It arises under the following circumstances.      In exercise of their powers under sub-s. (3) of s. 5 of the Punjab  Municipal Act,  1911 (hereinafter referred to as ’the Act’),  the State  Government of Punjab by notification dated August  2, 1976,  directed inclusion  of certain local areas. The  local  areas  so  included  are:  (1)  Moranwali Panchayat Area,  (2) Grain Market Area, (3) Guja Peer Basti, (4) Jakhal  Road, (5)  ITI Area,  (6) BDO  Block, (7) Tehsil Court Area  and (8) Thei Area. The Gram Panchayat, Moranwali challenged the  validity of  the said notification by a writ petition filed before the High Court. A learned Single 343 Judge granted  an ad  interim stay  staying the operation of the impugned  notification. The  writ petition was dismissed by the  learned Single Judge on October 23, 1978. Thereupon, the Gram  Panchayat preferred  a Letters  Patent Appeal  and prayed for  grant of  stay  of  operation  of  the  impugned notification. On  December 19, 1978, a Division Bench passed the following order:           Admitted. Stay  dispossession ad  interim.  Notice      regarding stay. It is  common ground  that eventually the stay was confirmed by the  Division Bench  and remained operative till April 1, 1980 when the Letters Patent Appeal was dismissed.      In the  meanwhile, the State Government decided to hold

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

the elections  of councillors  of the  Sunam Municipality on the basis  of  the  old  municipal  limits,  i.e.  from  the existing  15  wards,  along  with  those  of  the  42  other municipalities, since  proviso to sub-s. (3) of s. 13 of the Act, inserted  by Punjab Act 18 of 1978 as amended by Punjab Act 2 of 1979 made it obligatory for the State Government to hold such  elections before  June 30, 1979. Accordingly, the Deputy Commissioner  issued a  notification on April 6, 1979 under r.  3 of the Election Rules, 1952, specifying that the elections in  the municipality  shall be  held on  June  10, 1979. On  June 23,  1979, i.e.  after the  whole process  of election was  over, the  appellants, who  seek to  represent about 1000  voters from  the local  areas newly added to the municipal limits,  filed a  writ petition  in the High Court challenging the election as null and void on the ground that there was  no delimitation  of wards  and no fresh electoral rolls were prepared. The High Court, by its order dated July 20, 1979,  declined to  set aside  the elections  held,  but directed that  the local areas be given representation under sub-s. (5) of s. 5 of the Act.      In  support   of  the   appeal,  there  is  a  two-fold contention advanced.  In the  first place, the submission is that when  a local  area is  included within a municipality, elections cannot  be held  without delimitation of wards and preparation of  fresh electoral  rolls;  and  secondly,  the submission is that, in any event, with the vacation of stay, the election was invalidated. The first of these submissions is unexceptionable,  but it  does not  arise, and the second appears to us to be wholly devoid of substance.      Sub-s. (5)  of s.  5 of the Punjab Municipal Act, 1911, which is relevant for our purposes, reads as follows: 344           (5) When any local area included in a municipality      under sub-section  (3) is  a  Sabha  area,  or  a  part      thereof under  the Punjab  Gram  Panchayat  Act,  1952,      representation to  the inhabitants of the local area so      included on the committee of the municipality, in which      local  area   is  included,   shall  be  given  in  the      prescribed manner. The  Act   does  not   prescribe  the   manner   of   giving representation  to  the  inhabitants  when  any  local  area included in  a municipality  under sub-s.  (3) of  s. 5 is a Sabha area,  unlike that  in the case of a municipality or a notified area for which an express provision is made in sub- s. (6)  thereof. The matter, therefore, falls to be governed by the Election Rules, 1952 and the Delimitation of Wards of Municipalities Rules,  1972, framed  by the State Government in exercise of their powers under s. 240 (1) (b) and (c) and s. 258 of the Act.      Whenever  there   is  a  change  in  the  limits  of  a municipality, the  State Government  cannot proceed  to hold election  of   councillors  without   delimitation  of   the municipality  into  wards.  The  delimitation  of  wards,  a delicate and  important task. is entrusted to a Delimitation Board constituted under r. 3 of the Delimitation of Wards of Municipalities Rules,  1972 and under r. 4 thereof it is the duty of  the Delimitation Board to effect a re-division of a municipality. That rule reads thus:      4. Functions  of the  Board-it shall be the duty of the Board:-      (i)  to divide  the Municipality  into such  number  of           wards as  may be  necessary, having  regard to the           number of  elected members prescribed by the State           Government, for  the Committee,  and the number of           seats  reserved   for  members  of  the  Scheduled

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

         Castes; and      (ii) to re-adjust  the wards  as and when the limits of           the Municipality  are altered or there is increase           in population  of the  Municipality  or  there  is           abnormal variation in population or voting figures           of some  of the  wards of  the Municipality, which           requires, such re-adjustment. In the  delimitation of  wards, the  Board must  observe the principles laid  down in  r. 6, namely, (1) all wards shall, as far  as practicable, be geographically compact areas, and in delimiting  them due  regard shall  be  had  to  physical features, existing boundaries of administra- 345 tive units,  if any,  facilities of communication and public convenience; (2)  wards in  which seats are reserved for the Scheduled Castes shall be located, as far as practicable, in those areas  where the proportion of their population to the total population of the municipality is the largest; and (3) each municipality shall be divided into wards in such manner that the  population of each ward, as far as practicable, is the same  throughout the municipality, with a variation upto 10 per  cent above  or below the average population figures. While making  a re-division,  it  may  not  be  possible  to achieve mathematical  perfection, but  there must definitely be a  substantial compliance with the requirement that every person should have an equal vote.      The whole  purpose of  delimitation  of  municipalities into wards is to ensure that every citizen should get a fair representation in the municipalities. When a municipality is re-constituted by the inclusion of any local area within the limits of  a municipality under sub-s. (3) of s. 5 or by the exclusion  of   any  local   area  from   the  limits  of  a municipality under s. 7, i.e. when there is an alteration of the limits of the municipality, there must of necessity be a division of  the re-constituted  municipality into new wards without which  the elections cannot be held. There can be no disenfranchisement  of   a  part  of  the  electorate  of  a municipality. The  question was dealt with at some length by the Gujarat High Court in Bhaichandbhai Maganlal Shah v. The State of Gujarat & Ors. and it was observed:           It must  follow logically and inevitably from this      proposition that the constitution of wards dividing the      whole of  the municipal district is a sine qua non of a      valid election.  If no  wards at all are constituted in      the  municipal  district,  the  machinery  of  election      cannot go through and equally the machinery of election      cannot go  through if  wards are constituted in respect      of a  part of the municipal district and the other part      is not  divided into  any ward or wards. In such a case      there would  be lists of voters for the wards which are      constituted out of a part of the municipal district but      there would  be no  lists of voters so far as the other      part of  the municipal district is concerned and no one      from that  part would  be qualified to vote or to stand      as a  candidate for  the election  and  no  Councillors      being elected by 346      that part,  there would  be no  representation of  that      part  on  the  municipality.  Where  such  a  situation      arises, it is difficult to see how the Municipality can      be said  to be  a Municipality  for the  whole  of  the      municipal district within the meaning of s. 9. We approve of the view taken by the Gujarat High Court.      There can  be no  dispute with  the principle  that the State Government without re-constituting a municipality into

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

new  wards,   cannot  proceed   to  hold   an  election   of councillors, when  there is  an extension  of the  municipal limits, but  the difficulty  is about  the applicability  of that principle to the facts of the present case. There is no denying the fact that the effect of the stay order passed by the learned  Single  Judge  staying  the  operation  of  the notification issued  under sub-s. (3) of s. 5 was to put the said notification  in abeyance,  with the  result  that  the local areas  to which it related were not brought within the municipal limits.  It is  also an  undisputed fact  that the stay order  passed by  the learned Single Judge was in force from August  2, 1978  to October  23, 1978.  It is, however, urged that  with the  dismissal of  the writ petition by the learned Single  Judge on  October  23,  1978,  the  impugned notification was  brought into  effect and,  therefore,  the State Government could not proceed with the election without delimitation of  wards and  preparation of  fresh  electoral rolls. We are afraid, the contention cannot be accepted.      The case  presents a  rather disturbing  feature. There were drastic  changes brought  about in  s. 13  of  the  Act dealing  with   the  term  of  councillors  leading  to  the supersession of  all municipalities in the State and casting an  obligation   on  the  State  Government  to  hold  fresh elections of  councillors, before  June 30,  1979. In  these circumstances, the  Division Bench  should have  acted  with greater circumspection. On the contrary, the Division Bench, on December  19,  1978  passed  a  stay  order  staying  the dispossession  of  the  Gram  Panchayat  although  the  Gram Panchayat had  applied for  staying  the  operation  of  the impugned notification.  It is  somewhat unfortunate that the stay order  passed by  the Division  Bench  was  couched  in rather ambiguous terms, but it had virtually the same effect as the  one passed  by  the  learned  Single  Judge.  It  is difficult to  comprehend the  distinction between  "stay  of dispossession of  the Gram Panchayat" and "stay of operation of the  impugned  notification".  Apparently,  the  Division Bench, without  applying its  mind, passed  an order staying dispossession of the Gram Panchayat, failing 347 to realise that the effect of stay would dislocate the whole electoral process.  When a  local area  sought to be brought within the  limits of  the municipality  by the  issue of  a notification under  sub-s. (3) of s. 5, was kept out of such limits by  reason of  the stay  order passed by the Division Bench, there  would obviously  be  no  delimitation  of  the municipality into new wards.      There was  some doubt  created about  the  purport  and effect of  the stay order passed by the Division Bench. This brought about  an inevitable  chain  of  events.  After  the Division Bench  passed the  order on  December 19, 1978, the State Minister for Transport who represented the Sabha Areas in the  State Legislative Assembly wrote to the Minister for Local Self-Government to postpone the elections scheduled to be held  for the  municipality. When the exact nature of the stay order  was brought  to the  notice of  the Minister, he agreed with the view of the Local Self-Government Department that the  elections to  the municipality  could not  be held without a  delimitation of  the municipal  area. Eventually, the State  Government had  no other  alternative but to hold the election of the councillors on the basis of the existing limits of the municipality, i.e. from the existing 15 wards, due to  the amendment of Proviso to sub-s.(3) of s.13 of the Act by Punjab Act 2 of 1979 which made it obligatory for the State Government  to hold the election before June 30, 1979. There can  be no  doubt that the State Government acted with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

the best  of intentions  in deciding  to hold the elections. The election  so held  on June 10, 1979 was a valid election and the  councillors elected  are entitled to run their full term of  five years  as provided  by sub-s.(2) of s. 13. The contention that  with  the  vacation  of  the  stay  by  the dismissal of the Letters Patent Appeal on April 1, 1980, the whole election would be invalidated, must, therefore, fail.      We are  distressed to  find that  due to the stay order passed by  the Division  Bench a large number of inhabitants of the local areas brought within the municipal limits under sub s.(3)  of s.5 of the Act, who were otherwise eligible to be enrolled  as voters,  have thereby been deprived not only of their  valuable right to vote at the election but also of the right  to contest  as a  candidate  for  election  as  a councillor from  any of  the wards of the municipality or to the office of the President or the Vice President. But there is little that can be done in the matter at this stage.      Driven to  this situation  brought about  by  the  stay orders of  the High Court, there is no other alternative but to direct that 348 the local  areas included  in the  municipality under sub-s. (3) of  s. 5  should be  formed into  a ward  or  wards  and representation given to them under sub-s. (5) of s. 5 of the Act. The  term of the councillors so elected from such local areas shall  be co-terminus with the term of the councillors already elected  from the  existing 15 wards. We are assured by learned  counsel for  the State that the State Government shall take  immediate steps  to comply  with this direction. This shall  be a  purely interim arrangement necessitated by the somewhat  unfortunate stay  orders passed  by  the  High Court.  The  interim  arrangement  cannot  obviously  extend beyond the term of the present council.      We hope  and trust  that the State Government shall, in the meanwhile, take steps to constitute a Delimitation Board under r.  3 of  the Delimitation  of Wards of Municipalities Rules, 1972. After the delimitation of the municipality into new wards,  the State Government shall proceed to re-fix the number of  councillors of  the  re-constituted  municipality under s.  11, prescribe  the number  of elected  councillors afresh as  required under  cl. (a) of sub-s. (1) of s. 12 of the Act  and issue  necessary directions for the preparation of fresh  electoral rolls  as required under rr. 8 and 8A of the Election Rules. 1952.      In the result, the appeal fails and is dismissed. There shall be no order as to costs. S.R.                                       Appeal dismissed. 349