ORDER
C.K. Prasad, J.
1. The petitioner in his application under Articles 226 and 227 of the Constitution of India has inter alia prayed for the following reliefs :–
(i) That, an appropriate writ, order or direction be issued quashing the adjourned meetings dated 28-1-1995 and 3-2-1995 called vide Annexures P/3 and P/4 as null and void and non est.
(ii) That, it be ordered that the adjourned meetings held on 28-1-1995 and 3-2-1995 were not in accordance with the provisions of the M.P. Municipal Corporation Act, 1956 and the Rules made thereunder, ultra vires of the same and consequently the entire business done or transacted at such meeting including the declaration about constitution/formation of the Standing Committee and other Committees be declared to be void, ineffective and non-est.
2. Shorn of unnecessary details facts giving rise to the present Writ Application are that the election of Corporators of Indore Municipal Corporation (hereinafter referred to as ‘Corporation’) was declared in November/December, 1994, The total number of corporators of the Corporation is 69. Respondent No. 2 i.e. Revenue Commissioner of Indore Division, after election of the Corporators, called the first meeting of the Corporation, in exercise of the power, conferred under Section 28 of the M.P. Municipal Corporation Act, 1956 (hereinafter called as ‘the Corporation Act’) for election of Mayor, Deputy Mayor, the Standing and the Special Consultative Committees, by notice dated 23-12-1994. The date and time of the meeting was fixed at 11 a.m. on 5-1-1995 (Annexure P/1). The meeting as scheduled was held on 5-1-1995 at 7 p.m., but on that day only the election of the Mayor and the Deputy Mayor was held. In the election of Mayor, Respondent No. 3, Shri Madhukar Verma, was elected and one Shri Ramesh Gagre was elected as the Deputy Mayor. As the notice issued by the Revenue Commissioner dated 23-12-1994 pertains also to the election of the members of the Standing and the Special Consultative Committees and the said business was not transacted on 5-1-1995, under the orders of Mayor a notice dated 18-1-1995, Annexure P/3, was issued by the Secretary of the Corporation stating therein that rest of the items which were not taken up in the meeting of the Corporation held on 5-1-1995, shall be taken up on 28-1-1995.
3. According to the petitioner, the meeting called on 28-1-1995 was abruptly adjourned after passing resolution of condolence on account of death of one of the ex-Corporator. Thereafter, the meeting was adjourned to 3-2-1995 and a notice to this effect was issued by the Secretary of the Corporation on 28-1-1995 under the orders of Mayor (Annexure P/4). The notice contained the agenda of the meeting i.e. for election of the members of the Standing and the Special Consultative Committees. The meeting held on 3-2-1995 was presided over by Respondent No. 3, Mayor of the Corporation and the members of the Standing and Special Consultative Committee were elected.
4. W.P. No. 338/95
In this Writ Application the petitioner has prayed for the following reliefs :–
(i) To issue appropriate writ, order or direction declaring the notice issued by Respondent No. 2 convening the meeting, on 5-1-1995 to be illegal void as also the entire proceedings as contained in Annexure P/5 is forged and fabricated,
(ii) By issuance of appropriate writ/order or direction respondent No. 3 be directed to convene the meeting of the Corporation and elect the members of the Committees in accordance with law.
5. Short facts giving rise to the Writ Application are that election of Councillors of Dewas Municipal Corporation (hereinafter referred to as the ‘Corporation’) was held on 24-11-1994 and counting of votes of all the 45 wards took place on 29-11-1994. The result of the election was notified in the Official Gazette on 5-12-1995. After the election of the Councillors the Revenue Commissioner, Ujjain, in exercise of its power under Section 28(1) of the Corporation Act authorized the Collector to call the first meeting of the Corporation. Consequently, the Collector called the meeting of the Corporation for election of Mayor, Deputy Mayor, Standing Committee and Special Consultative Committee and fixed 5th of January, 1995 for the first meeting of the Corporation. In pursuance of the aforesaid notice meeting of the Corporation was held and presided over by the Collector and the Mayor and the Deputy Mayor were elected. However, on the said date election of the members of the Standing and Special Consultative Committees was not held. It is the allegation of the petitioner that the Collector after conducting the election of Mayor and Deputy Mayor left the meeting hall without making any announcement. According to him, respondent No. 3 neither made any announcement for adjournment of the meeting or its closure. It is further averred that he also did not made any announcement that election to the Standing Committee and other Committees shall take place on the same day. According to the petitioner, Councillors had no information and they returned from the meeting hall without election of the members of the Committees.
6. According to the petitioner, Respondent No. 2, Commissioner of the Corporation issued a notice dated 23-1-1995 informing the Councillors regarding the election of the members of the Committee to be held on 31-1-1995 (Annexure P/2). The Commissioner of the Corporation also circulated a notice indicating the manner in which the election to the Committees shall be held. As directed, the meeting of the Corporation was held on 31-1-1995 but the same was adjourned for 5-2-1995 at 12 noon, after adopting the condolence resolution on account of death of Ex-President of the country and other persons. On 5-2-1995 the election to the members of the Committee was held. It seems, there is controversy in relation to the manner in which the election to the Committees was held, and the same shall be dealt separately. The proceedings dated 5-2-1995 relating to election to the Committees have been placed on record (Annexures P/4 and P/5).
7. Shri G. M. Chafekar, learned Senior Advocate, appearing on behalf of petitioner submits that meetings held on 28-1-1995 and 3-2-1995 were illegal, invalid and unwarranted because those meetings were not called by the Revenue Commissioner, Respondent No. 2. According to Shri Chafekar, as the meetings held on the aforesaid dates were adjourned meetings, it ought to have been convened and presided over by the Revenue Commissioner, as required under Section 28 of the Corporation Act. Section 28 of the Corporation Act, reads as follows :–
28. First meeting after general election :
(1) The Revenue Commissioner, or in his absence due to any reason, his representative not below the rank of a Collector as may be authorised by him in this behalf in the case of first general election and in the case of any subsequent election, shall call the first meeting of the Corporation as soon as the election of the Councillors is notified to elect the Mayor, the Deputy Mayor, the Standing and the Special Consultative Committees and transact any other business.
(2) The meeting of the Corporation called under Sub-section (1) shall be presided over by the officer calling the meeting for the purpose of conducting the election of the Mayor and the Deputy Mayor.
8. It is common ground that the meetings held on 28-1-1995 and 3-2-1995 were adjourned meetings and the notice for the said meeting was issued by the Secretary under the order of the Mayor.
9. According to Shri Chafekar, meetings held on 28-1-1995 and 3-2-1995 were called by the Mayor and in view of Section 28(1) of the Corporation Act, it ought to have been called by the Revenue Commissioner. In his submission the act of Mayor to call the meeting of the Corporation being not sanctioned by law, the decision taken in the said meeting including the election of the members of the Standing and Special Consultative Committee is non est in the eye of law.
10. It is relevant here to state that on 28-1-1995 condolence resolution was passed whereas on 3-2-1995 election of the members of the Standing Committee as well as Special Consultative Committees had taken place. The first meeting of the Corporation was called by (he Revenue Commissioner and the meeting was held on the fixed date i.e. 5-1-1995 and the Mayor and Deputy Mayor were elected. In the said meeting the items in the agenda were to elect the members of the Standing and Special Consultative Committee also. It is nobody’s case that between 5-1-1995 and 28-1-1995 or for that matter till 3-2-1995 any other meeting of the Corporation was held. In the meeting held on 5-1-1995 the Mayor and Deputy Mayor were elected and the meeting was adjourned. Thereafter, meeting held on 28-1-1995 was adjourned after passing the Condolence resolution and on the next date i.e. 3-2-1995 election to Standing and Special Consultative Committee were held. As such the meetings called on 28-1-1995 and 3-2-1995 can safely be said to be adjourned meetings and that being so it shall further be deemed to have been called by the Revenue Commissioner. Thus, I do not find any illegality in the same.
11. The next limb of Shri Chafekar’s submission is that the meetings held on 28-1-1995 and 3-2-1995 were presided over by the Mayor instead of Revenue Commissioner and the same is in violation of Section 28 of the Corporation Act. Necessary corollary of the aforesaid submission is that the business transacted on these days, thus become illegal and non est in the eye of law. In his submission the person calling the meeting for the purpose of election of Mayor and Deputy Mayor is not only required to call the meeting for election of the members of the Standing and Special Consultative Committees, but he is further required to preside over the same. The expression ‘Mayor and- Deputy Mayor’ as defined in Section 28(2) of the Corporation Act in the submission of the learned Counsel is illustrative and not exhaustive.
12. Shri S. Kulshrestha, Additional Advocate General, appearing on behalf of Respondent No. 2 and Shri A. M. Mathur, learned Senior Advocate, appearing on behalf of Respondent No. 1, Indore Municipal Corporation, submit that so far as the convening of the first meeting of the Corporation for election to the office of Mayor, Deputy Mayor, Standing and the Special Consultative Committees is concerned it is required to be called by the Revenue Commissioner or in his absence his representative, not below the rank of a Collector, as may be authorized by him, as provided under Section 28(1) of the Corporation Act. However, Revenue Commissioner or his representative shell have the right to preside over the meeting for the purpose of conducting the election of Mayor and the Deputy Mayor only, which is apparent from Section 28(2) of the Corporation Act.
13. Section 37 of the Corporation Act provides for constitution of Standing Com-mil tee and the same is consist of ten elected Councillors. Section 38 of the Corporation Act inter alia provides for election of Standing Committee. Section 38 of the Corporation Act reads as follows:–
38. Election of Standing Committee :
(1) The Corporation shall, at its first meeting each year, elect ten of its elected Councillors of the Standing Committee.
(2) The term of office of the Standing Committee shall be two and a half years.
(3) Any Councillor who ceases to be a member of the Standing Committee shall be eligible for re-election.
(4) In this section, the word ‘year’ shall have the same meaning as is assigned thereto in the Explanation to Sub-section (1) of Section 23.
14. Similarly, Section 46 of the Corporation Act provides for Special Consultative Committees, their term, election and filling of casual vacancies etc. Section 46 of the Corporation Act reads as follows :–
46. Special Consultative Committees, their term, election and filling of casual vacancies:
(1) There shall be seven Special Consultative Committees, each consisting of not less than 5 and not more than 9 Councillors,–namely:
(a) a Public Works Committee to which may be referred for inquiry and report, or for opinion, any matter connected with roads, buildings, lighting, public parks and gardens, leases and acquisition of property;
(b) a Public Health and Market Committee to which may be referred for inquiry and report, or for opinion, any matter connected with public health and safety, health of animals in the city, sanitation, markets, slaughter-houses, vaccination, the disposal of rubbish and offensive matter, and the regulation of dangerous and offensive trades;
(c) an Education Committee to which may be referred for inquiry and report or for opinion any matter connected with education in the city;
(d) a Hospital Committee to which may be referred for inquiry and report or for opinion, any matter relating to hospitals and dispensaries and medical and public health administration in the city;
(e) Water Works Committee to which may be referred for inquiry and report or for opinion, any matter relating to water-supply in the city and management of water-works belonging to Corporation;
(f) Law, Revenue and General Purposes Committee to which may be referred for inquiry and report or for opinion any matter relating to law and constitution, revenue or any other matter not coming within the sphere of any other Committee;
(g) Public Relation Committee which may be referred any matter relating to civil, education, publicity and propaganda, public relations and liaison and all other matters connected therewith.
(2) The term of office of every Committee mentioned in Sub-section (1) shall be one year.
(3) At the first meeting in every year the Corporation shall elect from amongst its Councillors members to serve on the Committees in Sub-section (1).
(4) If any casual vacancy occurs in the office of a member of the Committee appointed under Sub-section (1), the Corporation shall, as soon as may be, after the occurrence of such vacancy appoint one of its members to fill the vacancy and every Councillor so appointed shall continue in office for the unexpired term of his predecessor.
15. Reading of Section 38 of the Corporation Act makes it clear that election of the Standing Committee is to be held at the Corporation’s first meeting each year and similarly the election to the Special Consultative Committees is required to be held at the first meeting of the Corporation.
16. To me it appears to be plain that Section 28(1) of the Corporation Act authorises the Revenue Commissioner or his representative to call the First Meeting of the Corporation. It is Section 28(2) of the Corporation Act, which authorises the Revenue Commissioner to preside over the meeting but the same is confined to the election of Mayor and Deputy Mayor only. In the case of State of Uttar Pradesh v. Dr. Vijay Anand Maharaj (AIR 1963 SC 946) the Apex Court sounded a note of caution that where a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself.
17. Further if, I accept the submission of Shri Chafekar that expression ‘Mayor and Deputy Mayor’ is illustrative, the same will lead to rendering the following words in Section 28(2) of the Corporation Act ‘for the purpose of conducting the election of Mayor and Deputy Mayor’ superfluous. If the intention of the Legislature was that the officer shall preside over the meeting for election of the Standing and the Special Consultative Committee also they could have stopped after the following words i.e. The meeting of the Corporation called under Subsection (1) shall be presided over by the officer calling the meeting’ engrafted in Section 28(2) of the Corporation Act.
18. In the case of Quebec Railway, Light, Heat and Power Company Limited v. Vandry (AIR 1920 PC 181) the Privy Council has stated that “The Legislature is deemed not to waste any words or to say any thing under any event” and in the case of Ghanshyamdas v. Regional Assistant Commissioner (AIR 1964 SC 766) the Apex Court held as follows :–
“A construction which attribute redundancy to a Legislature shall not be accepted except for compelling reasons.”
Again the Apex Court in the case of Aswini Kumar Chose v. Arbinda Bose (AIR 1952 SC 369) held as follows :–
“It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute”
19. Thus, I am not prepared to say that the word ‘for the purpose of conducting the election of the Mayor and the Deputy Mayor’ in Section 28(2) of the Corporation Act are either superfluous or illustrative, consequently, I do not find any substance in this submission of Shri Chafekar.
20. The problem posed can be addressed from another angle also. Section 28(1) of the Corporation Act authorise the Revenue Commissioner or his representative to call first meeting of the Corporation for the purpose of election of Mayor, Deputy Mayor, members of the Standing and Consultative Committees as also to transact any other business.
21. As a general rule, under Section 33 of the Corporation Act, the Mayor is authorised to preside and in his absence the Deputy Mayor or any other Councillor, chosen by the Councillors is required to preside over the meeting of the Corporation. Howeve’r, an exception has been carved out by Section 28(2) of the Act that for election of the Mayor and the Deputy Mayor, the same shall be presided over by the Revenue Commissioner or his representative. Section 33 of the Corporation Act provides for Chairman of the meeting, which reads as follows:–
Section 33. Chairman of meeting :
(1) At the meeting of the Corporation the Mayor, if present, shall preside.
(2) If the Mayor is absent from a meeting of the Corporation, the Deputy Mayor shall preside.
(3) If both the Mayor and Deputy Mayor are absent from the meeting of the Corporation, the elected Councillors present shall choose one of them to preside.
(4) In the case of an equality of votes the person presiding over the meeting shall have casting vote.
22. As stated earlier Section 28(1) of the Corporation Act not only contemplates of convening the meeting for the purpose of election of the Mayor and the Deputy Mayor but. also the members of the Standing and Consultative Committees and to transact any other business. As such under Section 33 of the Corporation Act the Mayor has the authority to preside over the meeting in relation to election of the members of the Standing and Special Consultative Communities. In case the submission of counsel for the petitioner is accepted then the same will tantamount to watering down the provision of Section 33 of the Corporation Act which as a general rule provides that Mayor or Deputy Mayor or the Councillor in certain contingency shall preside over the meeting of the Corporation.
23. Shri Chafekar further submits that under Section 23(5) of the Corporation Act the election of the Mayor or the Deputy Mayor is required to be notified by the State Government in the Official Gazette and before such a notification the Mayor was not authorised to preside over the meeting.
24. It is common ground that on the day when the Mayor presided over the meeting for election to the Standing Committee and Special Consultative Committee the notification in Official Gazette as contemplated under Section 23(5) of the Corporation Act was not made. Thus, learned counsel for the petitioner submits, that the Mayor presided over the meeting without any authority of law.
25. The learned Additional Advocate General, however, submits that the election of the Mayor and the Deputy Mayor comes into effect the moment he is elected in the meeting held under Section 28 of the Corporation Act notwithstanding the fact that the notification is not made in the official gazette as contemplated under Section 23(5) of the Corporation Act. Section 23(5) of the Corporation Act reads as follows:–
Section 23. Election and term of Mayor and Deputy Mayor:
(1) The elected Councillors of the Corporation shall in the manner prescribed, at its first meeting, as referred to in Section 28, elect a Mayor and a Deputy Mayor from amongst themselves.
(2) (a) A Mayor and a Deputy Mayor elected under Sub-section (1) shall hold office for a period of two and a half years from the date on which he is elected to his office.
x x x x x
(5) Every election of the Mayor or the Deputy Mayor shall be notified by the State Government in the official gazette.
26. I find substance in the submission of learned Additional Advocate General. Section 23(2)(a) of the Corporation Act fixes a term of two and a half years of the office of the Mayor and the Deputy Mayor and that is to be counted from the date on which they are elected to their office. The period of two and half years begins from the date on which Mayor or Deputy Mayor are elected to his office’. I do not have any doubt in holding that it shall commence from the date when they are elected to the respective offices and from that date’ such elected Mayor and Deputy Mayor become the holder of such office for all purposes and intent. Thus, there is no illegality committed by the Mayor in presiding over the meeting for election of the office of the Standing Committee and Special Consultative Committee, notwithstanding that their election was notified in the official gezette later. Thus, I negative the submission of learned counsel for the petitioner.
27. In this connection, it is relevant here to note an ancillary submission of Shri Chafekar that there is difference in the Hindi and English version of the Act and as such the Hindi version of Section 28 of the Act shall prevail.
Section 28 of the Corporation Act in Hindi reads as follows :–
^^28- O;kid fuokZpu ds i’pkr izFke lfEeyu
%&
¼1½ ik”kZnksa dk fuokZpu vf/klwfpr gksrs
gh] izFke O;kid fuokZpu dh n’kk esa rFkk izR;sd i’pkrorhZ fuokZpu dh n’kk esa
jktLo vk;qDr ;k fdlh Hkh dkj.k ls mldh vuqifLFkfr esa dysDVj dh in Js.kh ls
vfUEuz in & Js.kh okyk mldk izfrfuf/k tks fd jktLo vk;qDr }kjk bl laca/k ea
izkf/kÑr fd;k tkos] egkikSj] miegkikSj] LFkkbZ rFkk fo’kZ”k ijke’kZnkJh
lfefr;ksa dk fuokZpu djus ds fy;s rFkk dksbZ vU; dkedkt djus ds fy;s fuxe dk
izFke lfEeyu cqyk;sxkA
¼2½ fuxe ds ml lfEeyu dh tks fd mi/kkjk ¼1½
ds vf/ku cqyk;k x;k gks] v/;{krk ml inkf/kdkjh }kjk dh tk;sxh ftlus fd egkikSj
rFkk mi egkikSj ds fuokZpu dk lapkyu djus ds vk’; ds fy;s lfEeyu cqyk;k gksA
ijUrq ihBklhu inkf/kdkjh dks ,sls lfEeyu esa er nsus dk dksbZ vf/kdkj ugha gksxk
rFkk er cjkcj gksus dh n’kk esa ifj.kke dk fofu’p; ykV }kjk fd;k tk;sxkA**
28. The Additional Advocate General has not disputed this position that in the State of Madhya Pradesh, in case of conflict between Hindi version of an enactment and in English version, the former shall prevail. However, he submits that there is no difference between Hindi and English version.
29. Having given my anxious consideration to the submission made by the learned counsel for the parties, I do not find any difference between Hindi and English version. A reading of Section 28(2) of the Corporation Act makes it clear that the meeting called under Section 28(1) of the Corporation Act is to be presided by the same officer, who has convened the meeting for conduct of election of Mayor and Deputy Mayor, there does not seem to be any conflict in this regard.
30. Shri Kulshrestha, Additional Advocate General, and Shri Mathur representing the respondents further submit that the petitioner has an alternative remedy of challenging the election to the Standing Committee and Special Consultative Committees by way of election petition and, therefore, the petitioner has a proper effective statutory alternative remedy and on this ground alone the Writ petition deserves to be dismissed. He refers to Section 441 of the Corporation Act, which reads as follows :–
Section 441 Election Petition:–
(1) No election or (nomination) under this Act shall be called into question except by a petition presented in accordance with the provision of this section.
(2) Such petition may be presented on one or more of the grounds specified in Section 441-B.
(a) by any candidate at such election or nomination; or
(b) (i) in the case of an election of a Councillor, by any voter of the ward concerned;
(ii) In case of nomination of a Councillor, by any voter of the ward concerned; to the principal Civil Court of original jurisdiction within the local limits of whose jurisdiction the election or nomination was held.
x x x x x
31. Learned .counsels in support of their submission placed reliance on the judgment of the Apex Court in the case of K.K. Shrivastava etc. v. Bhupendra Kumar Jain, (AIR 1977 SC 1703). They laid emphasis on paragraph 4 of the judgment which reads as follows :–
‘It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition, it is perfectly clear that merely because the challenge is to a plurality returns of elections, therefore, a writ petition well lie is a fallacious argument. It is important to notice what the High Court has overlooked is that the period of limitation prescribed by the rules is 15 days and if writ petitions are to be entertained long afterwards it will stultify the statutory provision. Again in the present case an election petition covering the same subject-matter is actually pending. There is no foundation whatever for thinking that where challenge is to an ‘entire election’ then the writ jurisdiction springs into action, On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described as mis-exercise.’
32. Further reliance has been placed on the judgment of the Supreme Court in case of Gujarat University v. Rajguru, (AIR 1988 SC 66) and my attention has been drawn to paragraph 6 of the judgment which reads as follows:–
“It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election dispute is neither a fundamental or common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution by passing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify by passing the alternative remedies.”
33. Shri Chafekar, however, submits that in the present case the election to Standing and Special Consultative Committee has been challenged on the ground that Mayor, instead of the Revenue Commissioner, has presided over the meeting. The aforesaid ground being not a ground for declaring the election and nomination to be void the election petition is not an appropriate remedy. In support of his submission he placed reliance on the judgment of this Court in the case of Bhushanlal Sahu v. Jamunadas Sukhwani, (1983 MPLJ 743: (AIR 1983 MP 168). Particular emphasis has been laid on paragraphs 5 and 9 of the judgment which read as follows :–
(5) “Sub-section (3) of Section 20 provides for a period of limitation for filing the petition. The limitation so prescribed is thirty days from the date on which the result of such election or selection is notified in the gazette. Such a Gazette notification is necessary only in case of election/selection of a Councillor or appointment of a President/Vice-President of a Council. Result of no other election under the Act is required to be so notified. It is thus clear that the period of limitation for filing an election petition prescribed under Section 20(1) has referred only to such election or selection, the result of which is required to be notified in the Gazette. And as it is the election or selection of a Councillor to the council alone that is required to be published or notified, the period of limitation for filing the election petition is for such petitions where that election or selection is questioned. Necessarily, therefore, ‘election’ or ‘selection’ in Section 20(1) shall mean ‘election’ or ‘selection’ to a Municipal Council”.
(9) ‘My conclusion, therefore, is that Section 20 of the Act envisages an election petition before the District Judge to question the election or selection of persons as councillors of a Municipal Council only, but does not include an election petition challenging the appointment/election of a duly elected councillor as a member of Standing Committee of Municipal Council. This revision, therefore, must succeed and the impugned order must be set aside.’
34. Mr. Chafekar contends that election petition is not an alternative remedy as none of the grounds for declaring election or nomination to be void, as provided under Section 441-B of the Corporation Act contemplate of challenge on the ground as mentioned in that writ petition i.e. a person different than that, who has been authorised by law has presided over the meeting. In his submission the whole election has been held in violation of Section 28 of the Corporation Act.
35. Section 441-B of the Corporation Act provides as follows :–
Section 441-B. Grounds for declaring election of nominations to be void:–
(1) Subject to the provisions of Sub-section (2), if the Court is of the opinion:
x x x x x
(d) that the result of the election or nomination, in so far as it concerns, a returned candidate has been materially affected —
(i) by the improper acceptance of any nomination; or
(ii) By a corrupt practice having been committed in the interest of the returned candidate by a person other than that candidate or his agent or a person acting with the consent of such candidate or agent; or
(iii) by the improper acceptance or refusal of any vote or reception of any vote which is void; or
(iv) by the non-compliance with the provisions of this Act or of any rules or order made thereunder save the rules framed under Section 10 in so far as they relate to preparation and revision of list of voters.
The Court shall declare the election of the returned candidate to be void.
36. Here I find that the whole thrust in the submission of the learned counsel is pointed towards the fact that election was held in violation of Section 28 of the Act. In my opinion, the illegality pointed out by learned counsel can be a ground for declaring the election to be void in view of Section 441-B(l) (d)(iv) of the Corporation Act.
37. However, I am of the considered view that the relief sought for in the case i.e. election to the Standing Committee and Special Consultative Committee cannot be questioned in an election petition. The relief which can be claimed by the petitioner finds incorporated in Section 441-A of the Corporation Act. Section 441-A of the Corporation Act reads as follows:–
Section 441-A. Relief that may be claimed by the petitioner.
A petitioner may claim :–
(a) A declaration that the election or (nomination) of all or any of the returned candidates is void; and
(b) in addition thereof, a further declaration that he himself or any other candidate has been duly elected or (nominated).
(2) The expression ‘returned candidate’ means a candidate whose name is notified in the Gazette under Section 22.
38. Therefore, in an election petition relief with reference to the returned candidate can be sought for and the ‘returned candidate’ means, a candidate whose name is notified in the Gazette under Section 22 of the Act. Section of. the Act reads as follows:–
Section 22 Notification of election Councillors:–
‘Every election of a Councillor shall be notified by the State Election Commission in the official gazette.’
39. According to me Section 22 of the Corporation Act provides that every election of a Councillor shall be notified by the State Election Commission in the official gazette. Section 9 of the Corporation Act provides for composition of Municipal Corporation and the same to consist of Councillors chosen by direct election from the wards, besides other persons. It is only such councillors, whose election is to be notified by the State Election Commission in the official gazette under Section 22 of the Corporation Act that their election can be challenged by election petition. It is common ground that it is only the election of the Councillors, which is notified in the gazette by the State Election Commission and not of the members of the Committees. The members of the Standing and Consultative Committees do not come within the expression ‘returned candidate as contemplated under Section 441-B of the Act read with Section 22 of the Corporation Act. This finds support from the decision of this Court in the case of Bhushanlal, (AIR 1983 MP 168) (supra), relevant portion whereof reads as follows:–
Reference may also be made to the reliefs which can be claimed in an election petition presented under Section 20(1). Such reliefs contained in Section 21 are as follows:–
“21(1) A petitioner may claim —
(a) a declaration that the election or selection of all or any of the returned candidates is void; and
(b) in addition thereof, a. further declaration that he himself or any other candidate has been duly elected.
Further the expression ‘returned candidate’ is defined in Sub-section (2) of Section 21 to mean a candidate whose name is notified in the Gazette notification is necessary in case of every election or selection of a councillor. Thus, the relief in an election petition under Section 20(1) is confined only against a ‘returned candidate’ for declaration of his election/selection void. Of course, in addition to it, the petitioner, if he was himself a candidate to such election/ section, may also claim to be declared as duly elected/ selected. This provision also supports the view that ‘election’ or ‘selection’ in Sub-section 20(1) means ‘election’ or ‘selection’ of a councillor alone.’
Consequently I uphold the contention of Shri Chafekar and overrule the objection of respondent that, writ petition be dismissed on ground of availability of effective alternative remedy.
40. However, Mr. Kulshresta, the learned Additional Advocate General has contended that the election to the office of Mayor and members of the Standing and Special Consultative Committees stand on the same footing and when the election of the former can be challenged by election petition, there could be no reason not to extend the same logic in case of members of the Committee. In support of his submission strong reliance has been placed on a Division Bench Judgment of this Court in the case of Deokishan v. State of M. P., (W.P. No. 63/95 disposed of on 10-1-95 ). My attention has been drawn to paragraph 4 of the judgment, which reads as follows:–
‘Section 441 very clearly provides that any
voter can challenge the election of a Councillor. Admittedly the petitioner was not candidate in the election of Mayor. Respondents
Nos. 6 and 7 contested the election. Respondent No. 6 has been declared to be elected. If
there had been any illegality, impropriety,
irregularity or even a fraud as alleged, the
same can be challenged by way of an election
petition and the forum is of the Principal Civil
Court of original jurisdiction, Indore. Since a
clear alternative remedy is available, it would
not be proper to entertain such petition by way of public interest litigation.’
41. Mr. Additional Advocate General submits that I am obliged to follow the ratio of the said judgment as binding precedent. However, in fairness, he did not make any attempt to support the said view on principle.
42. Having given my most anxious consideration to this aspect of the matter, I am of the view that decision in Deokishan’s case (supra) cannot be considered to be a binding precedent. In the aforesaid case the primary question which fell for consideration before the Division Bench was the locus standi of a councillor to challenge the election of Mayor, which would be evident from paragraph 3 of the judgment, which reads as follows:–
“The contention of the learned counsel for the petitioner is that the petitioner is a Councillor and there had been some illegality and irregularity in the counting of votes and as such a wrong person has been elected as Mayor of the Municipal Corporation, Indore. He being a councillor has got a right to challenge it in the capacity of the citizen and voter of this corporation”.
43. Further, the case relied on by the learned Additional Advocate General pertains to election of Mayor and not that of the members of the Committees. The attention of the Division Bench was not drawn to Section 441-A of the Corporation Act, which contemplates of challenge of election of returned candidate only for the principle enunciated by this Court in the case of Bhushanlal, AIR 1983 MP 168 (supra) was considered. A judgment rendered by a Court of law without considering the relevant law is a judgment per incuriam. For the reasons stated above, I am of the view that judgment in Deokishan’s case does not bind me.
44. Shri Chafekar submits that the election of members of the Standing and Consultative Committees has been held in total violation of the law and the same cannot be deemed to be an election at all and, therefore, the remedy of filing of election petition is not a proper remedy. He submits that in case the entire election has been vitiated, the writ Court has the power to interfere in the matter. In the case of K.K. Shrivastava v. Bhupendra Kumar Jain, (AIR 1977 SC 1703) (supra) the Apex Court stated that ‘there is no foundation whatever for thinking that where challenge is to an ‘entire election’ then the writ jurisdiction springs into action’. However, I have held earlier, in the facts of the present case an election petition is not an alternative remedy and the writ petition is maintainable, Thus, this submission of Shri Chafekar has no substance.
45. Shri Kulshrestha and Shri Mathur, have also challenged the maintainability of the writ applications for non-joinder of the members of the Standing and Consultatives Committees in the writ petition. They submit that in the writ application the prayer has been made to declare the meeting and the resolution by which election of the Standing Committee and other Committees were held to be void, and illegal and in that view of the matter in case the relief sought for by the petitioner is granted the same shall adversely affect the members of the Standing and Special Consultative Committees and as such they are necessary party.
46. Shri Chafekar as also Shri Yadav, however, submit that as the Mayor has been impleaded as a party who represents all the members of the Standing Committee and Special Consultative Committees, the writ application does not suffer from defect of non-joinder of Party. They further submit that as they have challenged the entire election it is not necessary to implead all the elected members in the writ petition.
47. Having given my most anxious consideration to the facts and circumstances of the case, I am of the view that the writ petitions suffer from the defect of non-joinder of necessary parties. The writ petitions were filed later than the election of members of the Standing, and Consultative Committees. It is not the petitioner’s case that they were not aware of the persons, so elected. The relief sought for by the petitioner, in case it is granted shall adversely affect those persons, who were elected as members of the Standing Committee and Special Consultative Committees. It is worth mentioning here, that I have given opportunity to the petitioners to implead the Members of the Standing Committee and Special Consultative Committees or even some persons as representative capacity as party but the petitioners have not availed this opportunity and their stand is that the Mayor, who has been impleaded as a party represents the interest of the members of the Standing and Consultative Committees.
48. In the case of Prabodh Verma v. State of Uttar Pradesh, (AIR 1985 SC 167) the Apex Court has categorically held that ‘A High Court ought not to hear and dispose of a writ petition under Article 226 without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties.’ The very fact that the petitioner prayed to declare constitution/ formation of the Standing Committee and other Consultative Committee to be void, it can be safely said that the relief in case it is granted shall affect the members of the Standing Committee and the Special Consultative Committees.
49. Shri Chafekar and Shri Yadav, as noted earlier, submit that the interest of the members of the Standing and Special Consultative Committees being the same as that of a Mayor, their interest are represented and the writ petition does not suffer from the defect of non-joinder of the party. The very assumption on which the learned counsels proceed is not correct. The interest of the members of the Standing and Special Consultative Committees is not one and the same. In my opinion, if a person is affected in the same way as that of the persons who are not impleaded as a party then the former being a party in the writ proceedings it can be said that he represented the interest of the persons not joined as a party. Here, I do not find the same, situation.
50. It does not require much effort to say that Mayor, Deputy Mayor, members of the Standing and Consultative Committees are different and distinct functioneries having different tenures and powers and as such different legal entity. In view of the aforesaid discussion, the submission made by the learned counsel for the petitioner that Mayor represents the interest of the members of the Standing and Consultative Committees has no force and I sustain the objection of the learned counsel of the respondents that the writ petition suffers from the defect of nonjoinder of the necessary party.
51. The learned Additional Advocate General further submits that one of the grounds on which the election of the returned candidate can be declared to be void is the non-compliance of the provisions of the Act or any rule or orders made thereunder, save the rule framed under Section 10 of the Corporation Act in so for as they related to preparation and revision of list of voters as contemplated under Section 441-B(1)(d)(iv) of the Corporation Act, but the same can be done where it is found that result of the election of the” returned candidate has been materially affected. He submits that besides the complaint that the meeting was presided by the Mayor, no further grievance has been made and the same principle as applicable to election Court shall apply to writ Court also.
52. I do not have the slightest hesitation in accepting this submission of the learned Additional Advocate General. It is settled law that this Court interferes with the order of the Authorities only in case some prejudice is caused or decision materially affect the petitioner except in a case when the mandatory provision of law is violated. However, in view of my finding above that the Mayor did not commit any illegality by presiding over the meeting for the purpose-of election of the members of the Standing and Consultative Committees, the submission made by the learned Additional Advocate General is of no consequence.
53. Shri Champalal Yadav appearing on behalf of the petitioner in W. P. No. 338/95 besides adopting the submissions of Shri Chafekar further submits that the procedure for adjournment of the meeting of the Corporation is contemplated under Section 31 of the Corporation Act but the meeting was not adjourned in the manner provided under the law Section 31 of the Corporation Act reads as follows:–
Section 31 Adjournments:
Any meeting of the Corporation may, with the consent of a majority of the elected councillors present, be adjourned from time to time, to a later hour on the same day or to any other date; but no business other than that left over at the adjourned meeting shall be transacted at the next meeting.
A notice of such adjournment posted in the Municipal Office on the day on which the meeting is adjourned shall be deemed sufficient notice of the next ensuing meeting.
54. The petitioner has stated that after the election of the Mayor and the Deputy Mayor on 5-1-95 in the meeting of the Corporation, presided over by the Collector, the Collector left the meeting hall without making any announcement. However, in the return of respondents Nos. 1 and 2 it has been specifically averred that meeting held on 5-1-95 ‘continued till late hours and after conducting the election of Mayor and Deputy Mayor, the Collector as presiding officer requested the Mayor to occupy the chair and preside further with the meeting. On account of paucity of time the matter relating to the Standing and Consultative Committees was deferred’. Petitioner himself has stated that the meeting was held on 13-1-95 but the same was adjourned after passing condolence resolution on account of death of the Ex-President of the country. Thus, the grievance made by petitioner that the adjournments were defective and in teeth of Section 31 of the Corporation Act is not sustainable. Further, petitioner has not brought on record any thing which has caused prejudice to him in this regard. Thus, I negative this submission of Shri Yadav.
55. Shri Yadav, like Mr. Chafekar, submits that the meeting of the Standing and Consultative Committees held on 5-2-1995 cannot be said to be first meeting of the Corporation and in the view of the matter the election of the Committees has been vitiated. It is relevant here to state that the Collector called the first meeting of the Corporation which was held on 5-1-95 which included agenda for election of the members of the Standing and Consultative Committees. However, on the said date election of the Mayor and the Deputy Mayor could only take place and meeting was adjourned. Thereafter, the meeting held on 31-1-95 and the same was adjourned after passing the resolution of condolence. The next date of the meeting was 5-2-95 and on the said date the election to the Standing and Consultative Committees was held.
56. It is not the petitioner’s case, that between 5-1-95 to 5-2-95 any other business excepting the election of Mayor and Deputy Mayor and passing the condolence resolution any other agenda was taken. I am, therefore, of the considered view that the meeting held on 5-2-95 was an adjourned meeting and shall be deemed to be first meeting of the Corporation.
57. Shri Yadav further submits that the consequence of failure of the Corporation to constitute the Standing Committee at its first meeting is provided under Section 422 of the Corporation Act and the same contemplates of dissolution of the Corporation,
58. Section 422 (1)(c) of the Corporation Act reads as follows:–
Section 422. Dissolution of the Corporation:
(1) The State Government may, by an order, stating the reasons thereof, dissolve the Corporation, if
(a) (b) xx xx xx xx
(c) the Corporation fails to constitute the Standing Committee at its first meeting or on the expiry of the term of the Standing Committee within one month thereof;
59. As I have held that the meeting of the Corporation for election to the members of the Committees was held on the first meeting of the Corporation, the consequence contemplated under Section 422 of the Corporation Act does not ensue.
60. Now I advert to the factual allegation made in Writ Petition No. 253/95 (Shanker v. Indore Municipal Corporation) regarding the manner in which the election to the Standing and Special Consultative Committee was held. The petitioner makes the following statement :–
“In this meeting, a pandamonium prevailed and despite the demand for voting by ballot made by the required number of Corporators in terms of Rule 53 of the Nagar Palika Nigam Conduct of Business Rules 1976, the respondent No. 3 in his chamber declared various persons as members to form the Standing Committee and other Committees. This list has been illegally and without jurisdiction confirmed and ratified by the respondent No. 4. That the entire records concerning the proceedings of the adjourned meeting of 3-2-1995 and 28-1-95 and also on 5-1-95 be requisitioned from the respondent No. I. Copy of the request letter dated ^22-2-95 addressed to the respondent No. 2 for holding the election by ballot signed by the Corporators is filed herewith and marked as Annexure P/5 to the petition.’.
61. In answer thereto in the return filed by respondents Nos. 1, 3 and 4, I find the following averment:–
“On 3-2-1995, Corporator Shri Premchand Guddu submitted a proposed list of the members of the Standing Committee and various Consultative Committees. This list was seconded by Corporator Shri Chhote Yadav. There was no other proposal and as such there was no necessity of any election. Hence the committees were declared unanimously. A copy of the proceedings of the Council’s meeting dated 3-2-1995 is submitted herewith marked as Annexure R/2. It is denied that the respondent No. 3 in his chamber declared various persons as members of the Standing Committee and various other committees was made in the Council’s meeting dated 3-2-1995. The resolutions with regard to the election of various committees were accordingly recorded, a copy of which is submitted herewith, marked as Ann. R/3. The contrary averments made in this paragraph are denied. Any other specific averment not traversed is specifically denied. The receipt of the letter Annexure P/5 is admitted’.
Therefore, the request of the Corporators for holding the election by ballot has been accepted. ‘
62. The learned Additional Advocate General and Shri Mathur appeals to me that the manner in which the election was held requires determination of disputed questions of fact, which is not permissible in a writ petition. It is well settled that this Court in a writ proceedings is not incompetent to decide an issue of fact which can be determined from the materials on record. I am not permitted to fold my hand and decline to decide the issue simply because the respondents chose to dispute the facts averred by the petitioner. This is a rule of discretion and not of exclusion of jurisdiction.
63. In view of the aforesaid legal position, now I come to the factual aspect of the matter. The petitioner has averred that there was pandemonium in the meeting there is no whisper in this regard in the return filed by respondents Nos. 1, 3 and 4. Further a demand to hold the election of the members of the Committee by ballot was made by the Corporators, has been admitted by the respondents. No election was held, is also admitted. .
64. Rule 53 of the Indore Nagar Palika Nigam Conduct of Business Rules 1976 (hereinafter referred to as the ‘Rule) reads as follows:–
^^53- fof’k”V volj ij er ysus dh jhfr%&
er lkekU;r% gkFk mBkdj fy;s tk;saxs fdUrq
ihBklhu izkf/kdkjh Lofoosdkuqlkj fof’k”V voljksa ij eri= }kjk er ys ldsxk
vkSj ;fn cgqer }kjk ,slh okaNk dh tk; rks eri= }kjk gh er fy;s tk;saxsA**
65. Respondents have not stated that the procedure as contemplated under Rule 53 of the Rules was followed. Councillors whose names find place in the list and who were declared elected, were not put to vote and it was not elected by raising of votes.
66. However, in the present case the resolution of election of the Councillors to the Committees as held earlier was not adopted in the manner prescribed under the law. The election was not held in accordance with law is apparent from the pleadings of the parties as also from a bare reading of the proceedings of the meeting of the Corporation.
^^Jh izsepUn xqM~Mw }kjk lfefr;ksa dh izLrkfor
lwph izLrqr dh xbZ bl ij leFkZu Jh NksVs ;kno }kjk fd;k x;k FkkA vU; dksbZ
izLrko vFkok lwph izkIr ugha gksus ls ernku dh vko’;drk ugha jgh rFkk lfefr;ksa
dk fuokZpu fufoZjks/k ?kksf”kr fd;k x;kA
mDr dk;Zokgh ds nkSjku lnu esa dkQh ‘kksjxqy ds
lkfk QuhZpj dks mBk&mBk dj Qsadk tk jgk Fkk rFkk ekbZd O;oLFkk fNUu&fHkUu
gks xbZ Fkh ftlds dkj.k dh xbZ dk;Zokgh dks lquk tkuk dfBu gks jgk FkkA**
It means that Shri Premchand Guddu gave the proposed list of members of the Committees and the same was seconded by Chotelal Yadav. There being no other proposal or list, the occasion for holding election did not arise and election to the Committees was declared unopposed. During the aforesaid proceedings there was pandamonium ¼dkQh ‘kksj xqy½ in the house, the furnitures were being lifted and thrown and the sound system was disrupted, and as such it was difficult to hear.
67. A bare reading of the aforesaid proceeding goes to show that what has been recorded is contradictory and inconsistent. At one point the proceeding goes to show that as there was no other proposal or list and at the other place it admits of the proceeding being not audible which is inconsistent. Thus, I do not have the slightest hesitation in holding that the business transacted in the said meeting cannot be said to be in accordance with rules, just and fair.
68. Now. I will consider the factual allegations made in W.P. No. 338/95 (Sharad v. Mahapor, Dewas Nagar Palika Nigam) in relation to the manner in which the election to the Committees was held on 5-2-95. The petitioner has averred as follows:–
^^fuxe dh cSBd fn- 5&2&95 dks nksigj 12
cts rd ds fy, LFkfxr dj nh rFkk LFkfxr cSBd fn 5&2&95 dks nksigj 12 cts
fuxe ds lHkkd{k esa lEiUu gksuk Fkh fdUrq egkikSj 12 ctdj 20 feuV rd lHkkd{k esa
mifLFkr ugha gqbZ vkSj vUrr% os nksigj 12 ctdj 20 feuV ij lHkkd{k esa mifLFkr
gqbZA egkikSj ds lHkkd{k esa izos’k djus ds mijkUr ,d ik”kZn Jh vthr HkYyk
us izLrko j[kk fd egkikSj vius vf/kdkjksa dks mi;ksx dj lfefr;ksa dk xBu djsa]
ftldk fuxe ds cgqer ls ik”kZnksa us fojk/k fd;k fdUrq egkikSj us gB/kfeZrk
dk ifjp; fn;kA vUrr% uxj fuxe ds cgqer ds ik”kZn fuxe dk cfg”dkj dj
pys x;s vkSj dksbZ lfefr;ksa dk xBu ugha gqvkA**
It is further averred as follows:–
^^;g fd] mijksDr izdkj ls uxj fuxe dh cSBd
lfefr;ksa dk fuokZpu fd;s fcuk gh lekIr gks xbZ] fdUrq egkikSj }kjk uxj fuxe dh
cSBd ds i’pkr uxj fuxe dh cSBd dh ,d tkyh dk;Zokgh rS;kj dj lfefr;ksa ds xBu dh
?kks”k.kk dh vkSj mlesa rFkkdfFkr :i ls lfefr;ksa dk fuokZpu n’kkZ;kA
egkikSj }kjk rS;kj fd;s x;s tkyh dk;Zokgh dh izfrfyfi bl ;kfpdk ds lkFk layXu gS
tks ifjf'”V ih&5 ¼ikap½ gSaA**
69. In reply filed by respondent No. I following submission has been made:–
“Since for the purpose of formation of these Committees, proposal for each Committee was duly received from the proposer and seconder and there being no other proposals, the Committees were accordingly elected. Annexure P/4 is a copy of the part of the rough notes prepared in the register, on the basis of which the minutes were to be finally prepared, but this register was snatched by the Councillor Shri Mangilal Vijayvargiya and then some Councillors made unauthorised notings in this register. On account of commotion, the Collector had to come and intervene to restore the said register to the clerk concerned and a note duly signed by the Mayor was made in the register to indicate the fact that after the meeting was over, unauthorised recording was made in the register and the same should be omitted from the proceedings. Annexure P/5 records correctly the business transaction at the said meeting. It is, therefore, clear that some of the Councillors findings themselves in a helpless minority, wanted to sabotage the business and thereafter to challenge the same on the basis of the unauthorised interpolation made by them in the rough register’.
70. In view of the rival stand of the parties it requires determination as to whether the proceedings of the Corporation dated 5-2-95 (Annexure P/4) or (Annexure P/5) is genuine. It is the petitioner’s stand that the proceedings (Annexure P/5) is forged and fabricated one whereas according to respondent, Annexure P/4, is a copy of the part of rough notes prepared in a register on the basis of which the minutes were to be finally prepared but one councillor snatched away the same and some councillors made unauthorised notes in this Register. It is further stand of respondent that a note duly signed by the Mayor finds place in the register and after the meeting was over unauthorised recording was made in the register. The stand of the respondent seems plausible and I have no reason to disbelieve the same. Further nothing has been, pointed out to show that the minutes of the meeting dated 5-2-1995 is forged or fabricated excepting a bald statement of petitioner that minutes is forged.
71. Thus, I am not prepared to accept the submission of the learned counsel for petitioner that the proceedings of the Corporation dated 5-2-1995, Annexure P/5, is forged or fabricated.
72. Thus, none of the petitioners are entitled to the reliefs sought for by them and consequently both the writ petitions are dismissed. However, in the facts and circumstances of the case there shall be no order as to costs.