State Of Karnataka And Another, … vs N.A. Nagendrappa And Others on 18 February, 1991

ORDER

Venkatachala, J.

1. Hon’ble the Chief Justice and Hon’ble Shivaraj Patil, J., who, sitting in a Division Bench, heard the appeals on 3-8-1990, gave expression to their view of the important question involved in the appeals and the need for its decision by a Special Bench, by making the following order :–

“In view of the important question involved whether the delimitation order under S. 5(5) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983, and the amendments thereon, could be questioned in a writ petition, the consequences of which will be far-reaching, the matter is directed to be heard by a Special Bench.”

A Special Bench consisting of three of us (including Shivaraj Patil, J.) having been constituted pursuant to the said order, the appeals were heard by us and are being disposed of by this common judgment.

2. Karnataka State Legislature, with the object of establishing and constituting Zilla Parishads, Taluk Pancbayat Samithis, Mandal Panchayats and Nyaya Panchayats in the State and make them function as units of self-Government, enacted the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (for short ‘the Act’). President’s asset to the Act being given on 10-7-1985, the provisions of the Act other than those in Chapters XI to XIV thereof were brought into force. Thereafter, by a notification issued under sub-sec. (1) of S. 4 of the Act, an area comprising of a group of villages Thuruvanur, Kadabanakatte, Myasarahatti, Uppara-hatti, Doddaghatta, Bangarakkanahalli, Bogalerahatti and Avalcnahalli of Hiriyur Taluk in Chitradurga District, was declared as a ‘mandal’ with Thuruvanur as its headquarters. Consequently, Thuruvanur Mandal Panchayat came to be established under sub-sec. (4) of S. 4 of the Act. For constituting the Thuruvanur Mandal Panchayat as a representative body of the people of the area of that mandal, the strength of its elected members was fixed by the State Government as 26 by a notification issued under sub-sec. (1) of S. 5 of the Act and published in the Karnataka Gazette dated 11-6-1986. Subsequently, the Deputy Commissioner, Chitradurga District, as required under sub-sec. (5) of S. 5 of the Act, determined the constituencies in the Mandal area of Thuruvanur Mandal Panchayat, allotted the seats to Scheduled Castes and Scheduled Tribes, and women, by issuing the delimitation of constituencies notification published in the Karnataka Gazette dated 30-6-1986 (Annexure-A). The same Deputy Commissioner, however, amended the said delimitation of constituencies notification (Annexure-A) by issuing Errata Delimitation of Constituencies Notification — one published in Karnataka Gazette dated 27-11-1986 (Annexure-B); another published in Karnataka Gazette

dated 24-12-1986 (Annexure-C); and yet another published in Karnataka Gazette dated 24-12-1986 (Annexure-D), purporting to have issued them again under sub-section (5) of Section 5 of the Act. Then, the Deputy Commissioner, as required of him under Rule 12 of the Karnataka Zilla Farishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Conduct of Election) Rules, 1985 (for short ‘the Rules’), published in the Karnataka Gazette dated 30-12-1986 a Notification for election calling upon the Thuruvanur Mandal Panchayat to elect the required number of members to the seats of that Panchayat as determined by the Delimitation of Constituencies Notifications (Annexures-A to D), got published earlier. Candidates for 9 seats did not face any contest. After the completion of the election for the remaining 17 seats, the Returning Officer declared the result of election of the returned candidates to those seats on 2 1-1-1987, white he had declared the result of election for 9 uncontested seals about two weeks earlier. All the 26 members required to be elected for Thuruvariur Mandal Panchayat having been, thus, declared as duly elected. Thuruvanur Mandal Panchayat came to be constituted by operation of the provision in sub-section (5) of Section 5 of the Act. None called in question the election of the said 26 members from the constituencies of Thuruvanur Mandal Panchayal by filing Election Petition s as provided for under the Act. However, res-pondent-1 here, a voter from a constituency of Thuruvanur Mandal Panchayat, chose to challenge the election of the said 26 members elected to the seats in the constituencies of Thuruvanur Mandal Panchayat, by filing in this Court a writ petition. In the writ petition so filed on 6-4-1987, it had been prayed that Errata Delimitation of Constituencies Notifications (Annexures-B to D) issued by the Deputy Commissioner under sub-section (5) of Section 5 of the Act shall he quashed and the election of members to the seats of Thuruvanur Mandal Panchayat determined under those Notifications shall he declared void. State of Karnataka and the Returning Officer while had been impleaded in that writ petition as respondents 1 and 2, elected

members to the seals of Thuruvanur Mandal Panchayat had been impleaded as respondents 3 to 28 therein. A learned single Judge of this Court, who heard that writ petition, by his order dated 3 14-10-1988 made therein, allowed the writ petition, quashed the impugned Errata Delimitation of Constituencies Notifications (Annexures-B to D), declared the election of respondents 3 to 28 to the seats of Thuruvanur Mandal Panchayat created under those Notifications as void and directed them to vacate their Offices as members. It is the said order of the learned single Judge which is appealed against in Writ Appeal No. 161/89 filed by the Slate and the Returning Officer respondents I and 2 in the Writ Petition and in Writ Appeal No. 325/89 filed by an elected member-respondent-7 in the Writ Petition.

3. Important questions, which arise for consideration and decision in these appeals, if we have regard to the arguments addressed before us by learned Counsel appearing for the contesting parties and the view expressed in these appeals by a Division Bench of this Court — adverted to at the out-set, would be the following :

(1) Does the power invested in the Deputy Commissioner under sub-section (5) of Section 5 of the Act to issue Delimitation of Constituencies Notification include, wherever found necessary, the power to amend the Notification so issued, by issuance of Errata Delimitation of Constituencies Notifications?

(2) Does the provision in sub-section (5) of Sect on 5 of the Act cover ‘an electoral matter’ of the election required to be held under the Act for securing due constitution of the Mandal Panchayat established under the Act?

(3) Can a wrong Delimitation of Constituencies and Allotment of Seats Notification issued by the Deputy Commissioner under sub-section (5) of Section 5 of the Act be regarded as that made by non-compliance with that sub-section?

(4) If there is non-compliance with subsection (5) of Section 5 of the Act in the issuance of Delimitation of Constituencies

Notification, can it be a ground under sub-clause (iv) of clause (d) of sub-section (1) of Section 18 of the Act for calling in question the election of a returned candidate to the Mandal Panchayat by filing an election petition under sub-section (1) of Section 14 of the Act?

(5) Does the extraordinary remedy of writ petition under Articles 226 and 227 of the Constitution become available for questioning the validity of Delimitation of Constituencies Notification issued under sub-section (5) of Section 5 of the Act after the commencement of the election in such constituencies or to call in question the election of returned candidates to seats in such constituencies on the ground of invalidity of Delimitation of Constituencies Notification so issued?

(6) Does the order under appeals, by which the Errata Delimitation of Constituencies Notifications (Annexures-B to D) are quashed, election of respondents 3 to 28 to the seats of Thuruvanur Mandal Panchayat is declared void and respondents 3 to 28 are directed to vacate their offices as members of the Thuruvanur Mandal Panchayat, call to be set aside?

4. We shall now proceed to deal with the said questions, seriatim.

Re : Question (1) :

5. We are here concerned with the amplitude of the power invested in the Deputy Commissioner under sub-section (5) of Section 5 of the Act as regards issuance of Delimitation of Constituencies Notification respecting the area of a Mandal Panchayat. To be precise, we are concerned in finding out whether the power invested in the Deputy Commissioner under the sub-section for issuance of Delimitation of Constituencies Notification implies the power to amend the Notification, by issuance thereunder, wherever found necessary, an Errata (amending) Delimitation of Constituencies Notification. According to the learned single Judge, the power invested in the Deputy Commissioner under the sub-section for issuance of the Delimitation of Constituencies Notification

cannot be regarded as including the implied power to amend the Notification once issued under the sub-section nor the provision in Section 21 of the Karnataka General Clauses Act could be applied to hold that the power to issue Notification by the Deputy Commissioner under sub-section (5) includes the power to amend such Notification by issuing amending Notification/s thereunder. The learned single Judge has sought to find support for his view as to the inapplicability of Section 21 of the Karnataka General Clauses Act for construing sub-section (5) of Section 5 of the Act on the decisions in V. Ramachandra Reddy v. State of Andhra Pradesh, , Bhola Singh v. Goswami, and State of Bihar v. D. N. Ganguly, . Learned Counsel for the appellants while sought to assail the said view of the learned single Judge, learned Counsel for respondent-1 (writ petitioner) sought for sustenance of such view, by their arguments addressed to us.

6. Ascertainment of the amplitude of power invested in the Deputy Commissioner under sub-section (5) of Section 5 of the Act since becomes possible when the purposes for which such power is invested are known, the provisions in Section 5 of the Act, which could make us know such purposes, are reproduced :

“5. Constitution of Mandal Panchayat.-

(1) The Mandal Panchayat shall consist of such number of elected members as may be notified from time to time by the Government, at the rate of one member for every four hundred population or part thereof of the Mandal as ascertained at the last preceding census of which the relevant figures are published :

Provided that the determination of the number as aforesaid shall not affect the then composition of the Mandal Panchayat until the expiry of the term of office of the elected members then in office :

Provided further that, until the relevant figures for the first census taken after the year

2000 have been published, it shall not be necessary to redetermine the total number of seats in the mandal.

(2) Such number of seats, which shall as nearly as may be twenty-five per cent of the total number of the members of the Mandal Panchayats shall be reserved for women in every Mandal Panchayat :

Provided that out of the seats so reserved one seat shall be reserved for a woman belonging to the Scheduled Castes or the Scheduled Tribes.

(3) Where no person belonging to Backward Classes is elected to a Mandal Panchayat, the Zilla Parishad shall nominate two persons belonging to the said classes to the Mandal Panchayat.

(4) Seats shall be reserved in a Mandal Panchayat for Scheduled Castes and Scheduled Tribes the number of such seats bearing as nearly as may be the same proportion to the total number of seats in the Mandal Panchayat as the population of Scheduled Castes and Scheduled Tribes in the mandal bears to the total population of the mandal :

Provided that such reservation shall not be less than eighteen per cent of the total number of seats in the Mandal Panchayat :

Provided further that nothing contained in this section shall be deemed to prevent a woman or a member of the Scheduled Castes and Scheduled Tribes for whom seats have been reserved in a Mandal Panchayat from standing for election to any non-reserved seat in such Mandal Panchayat.

(5) Subject to the provisions of sub-sections (2), (3), (4) and (6), the Deputy Commissioner shall, by notification, determine,–

(a) the constituencies into which the area within the jurisdiction of every Mandal Panchayat shall be divided for the purposes of elections to such Mandal Panchayat;

(b) the extent of each constituency;

(c) the number of seats allotted to each constituency which shall be one or more; and

(d) the number of seats, if any, reserved for

the Scheduled Castes and Scheduled Tribes or women in each constituency.

(6) The ratio between the number of members to be elected from each territorial constituency in a Mandal Panchayat and the population of that constituency, as ascertained at the last preceding census shall, so far as practicable, be the same throughout the area within the jurisdiction of a Mandal Panchayat.

(7) If for any reason the election to any Mandal Panchayat docs not result in the election of the required number of members as specified in sub-section (1), the Deputy Commissioner shall, within one month from the dale on which the names of the elected members are published by him under subsection (9) arrange another election for the election of such number of members as will make up the required number.

(8) Notwithstanding anything in sub-sections (1) and (7), but subject to any general or special orders of the Government, where two-thirds of the total number of members of any Mandal Panchayat have been elected, the Mandal Panchayat shall be deemed to have been duly constituted under this Act.

(9) The Deputy Commissioner shall publish, in the prescribed manner the names of members elected or deemed to have been duly elected or nominated.”

Heading of Section 5 and the provisions in sub-sections thereof, as could be seen there-from, contain the scheme of election envisaged by the Legislature for securing due constitution of a Mandal Panchayat from representatives of the area of such Panchayat. Sub-section (1) of Section 5 while empowers the State Government to fix the total number of seats of elected members of a Mandal Panchayat, sub-section (5) thereof empowers the Deputy Commissioner to determine, by Notification, the constituencies into which the area within the jurisdiction of every Mandal Panchayat shall be divided for the purpose of election to such Mandal Panchayat, the extent of each constituency, the number of seats allotted to each constituency, the number of seats, if any, reserved for

Scheduled Castes or Scheduled Tribes or women in each constituency subject to subsections (2), (3), (4) and (6). A statutory duty is imposed upon the Deputy Commissioner to conform to the requirements of sub-sections (2), (3), (4) and (6) as and when such Notification is issued. Requirement in sub-section (2) relates to reservation of seats to be made for women in the area of Mandal Panchayat, sub- section (4) relates to reservation of scats to he made for Scheduled Castes and Scheduled Tubes in the area of the Mandal Panchayat and sub-section on (6) relates to the ratio of the members of a constituency and the population of such constituency. After issuance of the Delimitation of Constituencies Notification under sub-section (5) and before notice of election of members from the seats created under such Notification is given under Rule 12 of the Rule’s, the Deputy Commissioner if finds either suo motu or otherwise that Deli-imitation of Constituencies Notification issued by him is defective in one or other respect, can it be said that he does not have under that sub-section power to cure such defect by issuing amending Delimitation of Constituencies Notification. If it is said that such power is not invested in the Deputy Commissioner under sub-section (5) of Section 5 of the Act the statutory duty imposed on the Deputy Commissioner for carrying out the requirements of or purposes env isaged in subjections (2). (3), (4) (6) In issuing Delimitation of Constituencies Notification would become impossible of performance. This situation makes it difficult even to conceive that the power invested in the Deputy Commissioner under sub-section (5) docs not include power to amend. Deputy Commissioner’s power under sub-section (5), there- fore, having regard to the purposes sought to be achieved by it could be justly and properly regarded as wide enough to imply the power of issuing amending Delimitation of Constituencies Notification at any time before the notice of election is given for ensuring compliance with the requirements of sub-sections (2), (3), (4) and (6).

7. In Mohinder Singh v. Chief Election Commissioner. , when the Supreme Court had to consider the amplitude

of the power of the Election Commission invested in it under Article 324(1) of the Constitution in respect of election matter, it has observed thus (at pp. 893-94).

“There is no limitation in Art. 324(1) from which it can be held that where the law made under Article 327 or the relevant rules made thereunder do not provide for the mechanism of dealing with a certain extraordinary situation, the hands of the Election Commission are tied and it cannot independently decide for itself what to do in a matter relating to an election. The Election Commission is competent in an appropriate case to order re-poll of an entire constituency where necessary. It will be an exercise of power within the ambit of its functions under Art. 324.”

As the said observations arc made by the Supreme Court having regard to the purpose sought to be achieved by the Election Commission by use of the power invested in it under Article 324(1) of the Constitution, the view we have taken of the amplitude of the power of the Deputy Commissioner under sub-section (5) of Section 5 of the Act, having regard to the purpose sought to be served thereby, receives ample support from those observations of the Supreme Court.

8. Then, there was no justification, we think, for the learned single Judge to hoId that Section 21 of the Karnataka General Clauses Act, which embodies a rule of construction of a Karnataka Act, cannot be applied in the construction of sub-section (5) of Section 5 of the Act. The decisions in Ramachandra Rcddy’s case. (supra), Bhola Singh’s case, (supra) and Ganguli’s case, (supra), referred to by the learned single Judge in support of his view that Section 21 of the Karnataka General Clauses Act cannot be made applicable in the construction of sub-section (5) of Section 5 of the Act, we have to state with respect to him, ignore the purpose of the power invested in the Deputy Commissioner under sub-section (5) of Section 5 of the Act, which we have already adverted to.

9. No doubt, in Ramachandra Reddy’s

case (supra), referred to by the learned single Judge, it is held by the Andhra Pradesh High Court that in the construction of sub-section (3) of Section 3 of the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act, both Section 21 of the Central Act and Section 15 of the Madras General Clauses Act embodying a rule of construction, could not be applied. It does not mean that when it comes to the construction of a provision, like, sub-section (5) of Section 5 of the Act, rule of construction envisaged in Section 21 of the Karnataka General Clauses Act cannot be applied. What has been said by the Andhra Pradesh High Court in that decision is that aid of Section 21 could have been taken only for the construction of Section 3(3) of the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act, if the context or subject matter of the statute did not suggest a specific construction. The Andhra Pradesh High Court, in that case, did not accept the suggested construction of sub-section (3) of Section .3 of the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act, for, if the power of re-delimitation or re-constitution were to he exercised to annex to a Panchnyat Samithi ihe total area of another Panchayat Samithi already in existence, it would result in the latter’s complete extinction. Sub-section (3) of Section 3 of the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act, which was considered by the Andhra Pradesh High Court, corresponds not to sub-section (5) of Section 5 of the Act, but to sub-section (2) of Section 4 of the Act, which reads :

“(2) Subject to the general or special orders of the Government and the provisions of this Act, the Deputy Commissioner may, at the request of the Mandal concerned, or otherwise, and after previous publication of the proposal by notification, at any time,–

(a) increase the area of any mandal by including within such mandal any village or group of villages;

(b) diminish the area of any mandal by excluding from such mandal any village or group of villages;

(c) alter the name of any mandal; or

(d) declare that any area shall cease to be a mandal.”

In fact, the Act, having regard to the nature of the consequences that flow from the exercise of power by the Deputy Commissioner under sub-section (2) of Section 4, provides the necessary safeguard by enacting sub-section (3) thereof thus :

“(3) The Commissioner may either on an application made within thirty days from the date of the notification by any person aggrieved by such notification, or suo motu, and alter giving a reasonable opportunity of being heard to the applicant or the mandals concerned revise the orders of the Deputy Commissioner under sub-section (1) or sub-section (2) and may also if he considers necessary, modify it as provided in the third proviso to sub-section (1). Every order so passed revising or modifying the order of the Deputy Commissioner shall be published in the Official Gazette.”

Hence, Ramachandra Reddy’s case, (supra) cannot be regarded as one supporting the view of the learned single Judge.

10. When it comes to the decision of the Patna High Court in Bhola Singh’s case, (supra), referred to by the learned single Judge as supporting his view as to non-applicability of Section 21 of the Karnataka General Clauses Act in the construction of sub-section (5) of Section 5 of the Act, with respect to him, it could not have been regarded as a decision supporting his view, in that, it concerned the rejection of an argument that the power to make an order under Section 8(4) of the Bihar Act concerned therein, is different from an order of legislative nature envisaged in the provisions of that General Clauses Act, as becomes clear from the very portion of the order in that case, excerpted by the learned single Judge in his order, which reads (ILR (1989) Karnataka 124 at p. 368-69).

“No authority taking a contrary view was cited by either the Advocate General or Mr. B. C. Ghosh — rather, the former did not combat the proposition of law in regard to the

Chancellor’s power to review as expressed by me above; the latter, however, submitted that he has such power to amend or rescind his order under Section 24 of the Bihar and Orissa General Clauses Act. The said Section provides-

“Where, by any Bihar and Orissa Act or Bihar Act, a power to make or issue notifications, orders, schemes, rules, Bye-laws or forms, is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any notification, orders, schemes, rules, bye-laws or forms so made or issued.”

Sections 23 to 27 of the Bihar and Orissa General Clauses Act correspond respectively to Sections 20 to 24 of the General Clauses Act (Central Act 10 of 1897) and are under the heading ‘Provisions as to Orders, Rules, etc., made under Enactments’. Reading Section 24, by itself or in the context of the other sections under the said heading it is clear that the power to make or issue orders spoken of in the said section is of a legislative nature and not of a judicial nature as the order passed under Section 8(4) of the Act is. The expression ‘to make or issue orders’ has got to be read ejusdem generis and, when so read, it is manifest and the ‘orders’ spoken of in Section 24 of the Act are orders made or issued in exercise of the power of a kind of subordinate legislation conferred by any Act, to wit, the various Control Orders made under the Defence of India Act within the meaning of Section 21 of the Central Act. The power under Section 8(4) of the Act is exercisable ‘by order in writing’, but is not a power ‘to make an order’ within the meaning of the said provisions of the Bihar and Orissa General Clauses Act. If that were not so, all authorities and Court will derive their power to add to, amend, vary or rescind any order — judicial, quasi-judicial or administration — of the like nature at any time or any number of times they chose to exercise it. I have, therefore, no difficulty in rejecting the argument put forward by Mr. B. C. Ghosh.”

11. The other decision to which reference is made by the learned single Judge is that of

the Supreme Court in Ganguli’s case, (supra). The learned single Judge, it must be stated, has referred to it as merely a ruling throwing some light on the construction of Section 21 of the Karnataka General Clauses Act for the purpose of determining the power of the Deputy Commissioner under sub-section (5) of Section 5 of the Act. However, the learned single Judge being conscious of the fact that the decision in Ganguli’s case (supra) was rendered with reference to the scope of Section 10(1) of the Industrial Disputes Act, states thus :

“But, the scheme of the Act in question is not the same as the Industrial Disputes Act. So, we have to look to the decisions having a bearing on the provisions of the Village Panchayats Act in order to ascertain the effect of Section 21 of the Karnataka General Clauses Act.”

Thus, from what is stated by the learned single Judge himself of Ganguli’s case (supra) and the scheme of the Industrial Disputes Act dealt with therein not being the same as the scheme of the Act, with which we are concerned, it becomes clear that that decision does not in any way support the view taken by the learned single Judge as to the applicability of Section 21 of the Karnataka General Clauses Act, in the construction of subsection (5) of Section 5 of the Act.

12. Section 21 of the Karnataka General Clauses Act, which, in our view, also bears on the construction of Section 5 of the Act, reads :

“21. Power to make to include power to add, to amend, vary or rescind notifications orders rules or Bye-laws, — Where, by any enactment, a power to issue notifications orders, rules or Bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to like sanction, and conditions (if any), to add to, amend, vary or rescind any notifications, orders, Rules or Bye-laws so issued.”

Rule indicated in Section 21 being a rule of construction, it cannot be doubted that it would be displaced to the extent the provisions, the scheme and the object of a particular statute (Act) indicate a contrary intention. Rule in Section 21 above cannot be displaced in the construction of sub-section (5) of Section 5 of the Act, in that, the provisions in Section 5 of the Act and the purposes sought to be achieved by sub-section (5), as already pointed out by us, do not indicate a contrary intention.

13. Section 21 of the General Clauses Act, 1897, can be applied to amend from time to time the Rules made under Articles 77(3), 166(3) and 309 of the Constitution and the orders issued under Article 370 of the Constitution, cannot also be doubted (See : Sam-path Prakash v. State of Jammu & Kashmir, ). Rule in Section 21 of the General Clauses Act can be applied in the construction of the provisions dealing with election law, becomes obvious from the decision of the Supreme Court itself in Mohd. Yunus v. Shivkumar, . There, the question was whether the Election Commission had got power to limit the date of poll under clause (d) of Section 30 of the Representation of the People Act, 1951, read with Section 21 of the General Clauses Act. After quoting Section 21 of the General Clauses Act, the Supreme Court held thus :

“The Election Commission in this case exercised power under Section 30 of the Act and issued the notification appointing the various dates mentioned therein for the purposes specified. Once this power is conferred under Section 30 upon the Election Commission, the power to amend the same, which will include alteration of the dates of poll, can be exercised under Section 21 of the General Clauses Act. There is, therefore, no merit in the contention that the Election Commission had no power or jurisdiction to alter the date of poll from 3rd March, to 9th March, 1971, in the remaining constituencies in this case. Issue No. 2 is, therefore, rightly decided by the High Court although we do not agree with the High Court with regard to the construction of Section 153 of the Act. In the view we have taken, it is not necessary for us to consider whether Article 324 can be invoked in this case in aid of the power to alter the date of poll by the Election Commission.

6. The learned Counsel for the appellant also submits that there should have been a fresh notification of the date in form No. 1 under Rule 3, read with Section 31 of the Act, of the Conduct of Elections Rules, 1961. We are, however, not impressed by this submission as the amendment of the date of poll gets engrafted in the original form in pursuance of the subsequent notification dated 2nd March, 1971, made in valid exercise of the power under Section 30 of the Act, read with Section 21 of the General Clauses Act.”

14. It may be noticed here that the question whether Article 324 can be invoked in the case in aid of the power to alter the date of poll by the Election Commission left unanswered in the above decision, is answered by the Supreme Court in the affirmative in its subsequent decision in Mohinder Singh’s case, (supra).

15. Hence, our considered view on the question is that the power invested in the Deputy Commissioner under sub-section (5) of Section 5 of the Act to issue Delimitation of Constituencies Notification includes, wherever found necessary, power to amend the Notification so issued by issuing Errata Delimitation of Constituencies Notification/s before issuance of notice of election under Rule 12 of the Rules.

Re. Question (2) :

16. Due constitution of a Mandal Panchayat established under the Act shall be secured by means of election to be held therefor, has become clear from the provisions of Section 5 of the Act, reproduced by us, while dealing with Question (1). As could be seen from sub-section (5) thereof, power of issuing Delimitation of Constituencies Notification respecting the area of every Mandal Panchayat is vested in the Deputy Commissioner ‘for the purposes of elections to such Mandal Panchayat’. Then, can we not regard the provision in sub-section (5) as that covering “an electoral matter” of the election required to be held under the Act for securing due constitution of the Mandal Panchayat established under the Act, is the question.

17. As we could be guided by Articles 327,

328 and 329 under Part XV of our Constitution in deciding whether the matter covered by sub-section (5) of Section 5 of the Act, could be regarded as an electoral matter, they are excerpted :

“327. Power of Parliament to make provision with respect to elections to Legislatures. –

Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

328. Power of Legislature of a State to make provision with respect to elections to such Legislature. Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary fur securing the due constitution of such House or Houses.

329. Bar to interference by Courts in electoral matters. Notwithstanding anything in this Constitution

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 327 or
Article 328, shall not be called in question in any Court;

(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in
question except by an election petition
presented to such authority and in such
manner as may be provided for by or under
any law made by the appropriate Legislature “.

(Emphasis supplied)

As seen from the above Articles, Constitution itself regards the provisions to be made by either Parliament or State Legislature for securing due constitution of Parliament or either House of State Legislature, as the case may be, in the matter of Delimitation of Constituencies or allotment of scats as an ‘elect oral matter’. If that be so, there can be no valid reason for not regarding the provision in sub-section (5) of Section 5 of the Act concerning delimitation of constituencies or allotment of scats in a Mandal Panchayat as an ‘electoral matter’. Hence, we find that the provision in sub-section (5) of Section 5 of the Act relating to delimitation of constituencies or allotment of seats to a Mandal Panehayat covers ‘an electoral matter’ of an election to be held for securing due constitution of a Mandal Panchayat established under the Act and decide the question accordingly.

Re. Question (3) :

18. Can a wrong Delimitation of Constituencies and Allotment of Seats Notification issued by the Deputy Commissioner under sub-section (5) of Section 5 of the Act be regarded as that made by non-compliance with that sub-section (5), is the question.

19. Sub-section (2) of Section 5 of the Act lays down that out of the total number of seats of every Mandal Panchayat, 25% of them shall be reserved for women and out of the seats to be so reserved for women, one seat shall be reserved for Scheduled Castes and Scheduled “Tribes. Then, sub-section (4) of Section 5 lays down that seals to be reserved for Scheduled Castes and Scheduled Tribes out of the total number of scats in a Mandal Panchayat, must, as nearly as possible, be proportionate to the population of Scheduled Castes and Scheduled Tribes in the mandal as compared with the total population of the mandal. Besides, it lays down that scats to be so reserved shall not be less than 18% of the total number of seals of the Mandal Panchayat. When it comes to sub-section (6) of Section 5, it lays down that the ratio between the seats from each territorial constituency in a Mandal Panchayat and the population of that constituency as ascertained at the last preceding census shall, so far as practicable.

he the same throughout the area within the jurisdiction of a Mandal Panchayat. Subsection (5), which empowers the Deputy Commissioner to issue a Delimitation of Constituencies Notification for dividing the area of the mandal into constituencies, fixing the extent of each constituency, fixing the number of seats of each constituency and earmarking the reserved seats, makes that power exercisable according to the criteria or requirements laid down under aforesaid subsections (2), (4) and (5). If the Notification to be so issued by the Deputy Commissioner under sub-section (5) does not Conform to the said criteria or requirements it would be a wrong Delimitation of Constituencies and Allotment of Seals Notification. Such wrong Delimitation of Constituencies and Allotment of Seats Notification, in our view, has to be necessarily regarded as a wrong Delimitation of Constituencies Notification issued by non-compliance with sub-section (5) of Section 5 of the Act and, therefore, our decision on this question is m the affirmative.

Re . Question (4) :

20. If there is any non-compliance with sub-section (5) of Section 5 of the Act in the issuance of Delimitation of Constituencies Notification, can it be a ground under sub-clause (iv) of clause (d) of sub-section (1) of Section 18 of the Act for calling in question the election of a returned candidate to the Mandal Panchayat by filing an election petition under sub-section (1) of Section 14 of the Act, is the question.

21. Sub-section (1) of Section 14 of the
Act, which provides for calling in question the election of a returned candidate to a seat or seats in the Mandal Panchayat, read:

“14. Election Petition– (1) No election to fill a seat or seats in a Mandal Panchayat shall be called in question except by an election petition presented on one or more of the grounds specified in sub-section) (1) of Section 18 and Section 19 to the Munsiff within whose territorial jurisdiction of the mandal concerned for the major portion of the mandal concerned is situate by any candidate at such election or by any voter qualified to vote at such election

together with a deposit of one hundred rupees as security for costs, within thirty days from, but not earlier than, the date of declaration of the result of the election of the returned candidate, or if there are more than one returned candidate at the election, and if the dates of declaration of the results of their election are different, the last of those dates.”

Then, Section 18 of the Act enumerates the grounds for declaring the election of a returned candidate/s to be void. The provision in the sub-section, in so far as it relates to the grounds under consideration, reads:

“(1) …..

if the Munsiff is of opinion,–

(a) to (c) …..

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected,–

(i) to (iii) …..

(iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder,

the Munsiff shall declare the election of the returned candidate to be void.”

It becomes clear from the said provisions that the election of a returned candidate to a seat of a Mandal Panchayat could be called in question by filing an election petition before the Munsiff if such election is materially affected by reason of non-compliance with any provision of the Act. If regard is given to the arguments al the Bar, what needs our consideration and decision is whether non-compliance by the Deputy Commissioner in the issue of Delimitation of Constituencies Notification of a Mandal panchayat, could constitute a ground envisaged in sub-clause (iv) of clause (d) of sub-section (1) of S. 18 of the Act for voiding an election of a returned candidate to a seat of the Mandal Panchayat determined under such Notification.

22. The strenuous argument of the learned Counsel for the writ petitioner (voter) was that the non-compliance by the Deputy Commissioner with the provision in sub-

section (5) of Section 5 of the Act cannot be a ground to challenge the election of a returned candidate to a seat determined under such Notification because that Notification had not been issued after the election notification (notice) under Rule 12 of the Rules had been issued and before the declaration of the result of the election of the candidates in such election was made. In other words, the argument of the learned Counsel, to be precise, was that only such acts or omissions of the election Authorities which could be attributed to the period lying between the date of notice of election (actual commencement of the election) and the declaration of the result of candidates can alone be a ground under sub-clause (iv) of clause (d) of sub-section (1) of Section 18 of the Act to challenge the election of a returned candidate. We, rather, find it difficult to accede to the said argument.

23. The ground in sub-clause (iv) of clause (d) of sub-section (1) of Section 18 of the Act when seen in the context of the provision in sub-section (1) of Section 14 thereof, there is nothing to indicate that that ground becomes available only when it is relatable to an act or omission on the part of the election Authorities occurring or not occurring between the date of the election notice issued under Rule 12 of the Rules and the declaration of the result of the election. We have pointed out in dealing with Question (2) that the provision in sub-section (5) of Section 5 relating to the power of the Deputy Commissioner to issue a Delimitation of Constituencies or Allotment of Seats Notification is an electoral matter connected with and relating to election to the Mandal Panchayat. Even the learned single Judge has found the issuance of such Notification as an electoral matter as could be seen from paragraph-23 of his order in N. A. Nagendrappa v. State of Karnataka since reported in ILR (1989) Karnataka 324, which reads :

“The process of election was set in motion under the impugned Notifications issued by the Deputy Commissioner under Annexures-B, C and D.”

24. In N. P. Ponnuswami v. Returning Officer, Namakkal, , the

Supreme Court, in determining the most important question as to the meaning to be given to the word ‘election’ in Article 329(b) of the Constitution, has stated thus (para 7) :

“That the word (election) has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected.”

It has further stated, thus, by referring to the word ‘election’ used in Part XV of the Constitution (para 7) :

“It seems to me that the word “election” has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression “conduct of elections” in Art. 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Art. 329(b). That the word “election” bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins. The subject is dealt with quite concisely in Halsbury’s Laws of England in the following passage See : p. 237 of Halsbury’s Laws of England, Edn. 2, Vol. 12 under the heading “Commencement of the Election.”:

“Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is ‘reasonably imminent’. Neither the issue of the writ nor the publication of the notice of election can be looked to

as fixing the date when an election begins from this point of view. Nor, again, does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when ‘the conduct and management of an election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case.

The discussion in this passage makes it clear that the word “election” can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process.”

The said statements of the Supreme Court made as regards election and the steps involved in an election process, do not leave us in doubt that the issuance of a Delimitation of Constituencies and Allotment of Seats Notification would be a stage or step which will have a direct bearing on the result of the process of election. If that be so, there cannot be any impediment for us to hold that non-compliance of sub-section (5) of Section 5 of the Act in the issuance of the Delimitation of Constituencies Notification could be a ground under sub-clause (iv) of clause (d) of sub-section (1) of Section 18 of the Act for calling in question the election of a returned candidate to the Mandal Panchayat by filing an election petition under sub-section (1) of Section 14 of the Act inasmuch as sub-section (1) though states that no election to fill a seat or seats in a Mandal Panchayat shall be called in question, makes exceptions to call in question such election by filing an election petition on grounds contained in Section 18 of the Act.

25. In Durga Shankar v. Raghuraj Singh, , the question, which arose for decision by the Supreme Court, was whether the expression “non-compliance” with the provisions of the Constitution in Section 1 10(2)(c) of the Representation of the People Act was sufficiently wide to cover not

merely the case of improper acceptance or rejection of the nomination by the Returning Officer, but also the case where there is a fundamental disability in the candidate to, stand for election at all, in that, he had not attained 25 years of age to qualify himself for being chosen to fill a seat in the Legislative Assembly of a State under Article 173 of the Constitution. The observations made therein by the Supreme Court, which will have a telling effect on the question under consideration, read (at p. 524) :

“The expression “non-compliance with the provisions of the Constitution” is in our opinion sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all. The English law after the passing of the Ballot Act of 1872 is substantially the same as has been explained in the case of — ‘Stowe v. Jollifie’ (1874) 9 CP 734 (D). The register which corresponds to our electoral roll is regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law of Parliament.

(9) It is argued on behalf of the respondent that the expression “non-compliance” as used in sub-section (2)(c) would suggest the idea of not acting according to any rule or command and that the expression is not quite appropriate in describing a mere lack of qualification. This, we think, would be a narrow way of looking at the thing. When a person is incapable of being chosen as a member of a State Assembly under the provisions of the Constitution itself but has nevertheless been returned as such at an election, it can be said without impropriety that there has been non-compliance with the provisions of the Constitution materially affecting the result of the election. There is no material difference between “non-compliance” and “non-observance” or “breach” and this item in clause (c) of sub-section (2) may be taken as a residuary provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not

been specifically enumerated in the other portions of the clause. When a person is not qualified to be elected a member, there can be no doubt that the Election Tribunal has got to declare his election to be void. Under Section 98 of the Act this is one of the orders which the Election Tribunal is competent to make. If it is said that Section 100 of the Act enumerates exhaustively the grounds on which an election could be held void either as a whole or with regard to the returned candidate, we think that it would be a correct view to take that in the case of a candidate who is constitutionally incapable of being returned as a member, there is non-compliance with the provisions of the Constitution in the holding of the election and as such sub-section (2)(e) of Section 100 of the Act applies.”

The said observations of the Supreme Court, we feel, support the view we have taken of sub-clause (iv) of clause (d) of sub-section (1) of Section 18 of the Act being a wide ground, includes the issuance of Delimitation of Constituencies Notification by the Deputy Commissioner under sub-section (5) of Section 5 of the Act where the Notification so issued has the effect of vitiating materially the result of election of a returned candidate to a seat/s in a Mandal Panchayat. Hence, our decision on the question is in the affirmative.

Re. Question (5) :

26. Whether the extraordinary remedy of writ petition under Articles 226 and 227 of the Constitution becomes available for questioning the validity of Delimitation of Constituencies Notification issued under sub-section (5) of Section 5 of the Act after the commencement of the election in such constituencies by issuance of an election notice under Rule 12 of the Rules or to call in question the election of returned candidate/s to a seat/s in any constituency on the ground of invalidity of Delimitation of Constituencies Notification so issued, is the question.

27. In dealing with the amplitude of power invested in the Deputy Commissioner under sub-section (5) of Section 5 of the Act to issue Delimitation of Constituencies Notification, we have already pointed out that the

power so invested in the Deputy Commissioner includes the power to amend the Notification so issued, either suo motu or otherwise, by issuance of Errata Delimitation of Constituencies Notification/s at any time before the electorate to a Mandal Panchayat is called upon to elect its representatives (members) by issuance of election notice under Rule 12 of the Rules. Such power to issue Errata Notification/s by the Deputy Commissioner, we have indicated, is an implied power invested in him to effectuate the legislative purposes envisaged in sub-sections (2), (4) and (6) of Section 5 of the Act. We have also indicated that if election to a Mandal Panchayat commences and is completed on the basis of a Delimitation of Constituencies Notification issued by the Deputy Commissioner without complying with sub-section (5) of Section 5 of the Act, the election of a returned candidate to a seat attributable to such Notification, could be called in question by filing an election petition if such non-compliance has materially affected the result of that election. Undoubtedly, there is no constitutional bar to avail of the remedy under Articles 226 and 227 of the Constitution to call in question the validity of a Delimitation of Constituencies Notification issued by non-compliance of sub-section (5) of Section 5 of the Act by the Deputy Commissioner and the elections to seats in a Mandal Panchayat held pursuant thereto. Yet, we are inclined to take the view that the extraordinary remedy of writ petition under Articles 226 and 227 of the Constitution does not become available for questioning the validity of a Delimitation of Constituencies Notification issued under sub-section (5) of Section 5 of the Act after issue of Notification of the election in such constituencies or to call in question the election of returned candidate/s to seat/s in such constituencies on the ground of invalidity of the Delimitation of Constituencies Notification so issued, for the reasons which we shall presently state.

28. In N. P. Ponnuswami’s case, (supra), the Supreme Court had to deal with the question whether a remedy of writ petition under Articles 226 and 227 of the Constitution could be availed of to call in

question the improper rejection of the nomination of a candidate before the completion of the election. His Lordship Fazl AH, J., speaking for the Supreme Court, having considered all aspects of the matter, summed up the conclusions reached by him thus at page 70 of the report :

“The conclusions which 1 have arrived at may be summed up briefly as follows :

(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time-schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.

(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should he attached to anything which does not affect the “election” and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the “election” and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress.”

29. In Nanhoo Mal v. Hira Mal, , the question, which arose before the Supreme Court, was whether the remedy of Article 226 of the Constitution could have been availed of to call in question the procedure followed in the election of a President of the Municipal Board on the ground of non-compliance of Rule 6 of the U.P. Municipalities (Conduct of Election of Presidents and Election Petitions) Order, 1964, as the remedy sought in the writ petition in that regard before the High Court had been granted. Dealing with the matter, the opinion expressed by the Supreme Court in Paragraph-3 of the report, runs thus :

“3. We are of the opinion that the whole approach of the learned Judges of the High Court to this problem was mistaken. After the decision of this Court in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency, , there is hardly any room for Courts to entertain applications under Article 226 of the Constitution in matters relating to elections. Before dealing with this question we may set out Section 43-B of the U.P. Municipalities Act, which is the provision of law dealing with cases where the election of the President is questioned :

“43-B. Judicial Officer to decide the question of validity of election to the office of President –

(1) No election of the President shall be called in question except by an election petition presented in accordance with the provisions of this Act.

(2) An election petition may be presented by any member entitled to vote at the election or by a candidate who has been defeated at the election on one or more of the following grounds, that is to say –

(a) that the returned candidate has committed any corrupt practice within the meaning Section 28;

(b) that the nomination of any candidate has been wrongly rejected, or the nomination of the successful candidate or any other candidate who has not withdrawn his candidature has been wrongly included;

(c) that the result of the election has been materially affected by-

(i) the improper rejection or refusal of a vote, or

(ii) any non-compliance with the provisions of this Act or of any rules or orders made under this Act.

(3) An election petition shall be presented to the District Judge, or in a district where there is no head-quarters of the District Judge, within whose jurisdiction the Municipality to which the election petition relates is situate :

…..”

Thus the only way by which the election of a President can be called in question is by means of an election petition presented in accordance with the provisions of this Act. The election itself can be questioned only on one of the three grounds mentioned above. The only ground in the present case on the basis of which the election of the appellant was questioned is that there was a non-compliance with the provisions of R. 6, already referred to. Under the Act the non-compliance with any rule or order made under the Act or any provision of the Act does not ipso facto result in the election being set aside. That result can be set aside only if the Election Tribunal comes to the conclusion that the result of the election has been materially affected by such non-compliance. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District Judge. In the circumstances there was no room for the High Court exercising its powers under Art. 226 in order to set aside the election. In setting aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non-compliance with the rule in question. In any case that is a matter within the exclusive jurisdiction of the District Judge.”

Thereafter, the Supreme Court, after quoting the conclusions reached by the Supreme Court in Ponnuswami’s case (supra), to which we have already adverted, ruled thus :

“In the absence of any express provision in the Act to the contrary, these principles are applicable equally to cases of elections to Local Boards also.”

Then, on certain conclusions reached as regards the election of the President to the Municipal Board concerned, the observations made by the Supreme Court by referring to those conclusions, are these :

“These conclusions follow from the decision of this Court in Ponnuswami’s case, in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Art. 329 into account. The provisions of Art. 329 are relevant only to the extent that even the remedy under Art. 226 of the Constitution is barred as a result of the provisions. But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Art. 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Art. 226 in relation to elections it is not now necessary to consider. All the considerations applied incoming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of Courts at any intermediate stage before the results of the election are over apply with equal force to elections to local bodies.”

30. In Malam Singh v. The Collector, Sehore, , a Full Bench of the High Court of Madhya Pradesh had an occasion to consider the question whether it would be proper for the High Court to exercise its powers under Art. 226 of the Constitution in election matters arising under the Madhya Pradesh Panchayat Act, 1962, at intermediate stages, that is, to interfere with individual orders passed during the process of election, as would impede that process or should it decline to exercise that power and leave the parties to their remedy of an election petition to be presented after the election was over. After examining the question from diverse angles and relying upon the decision of the Supreme Court in N. P. Ponnuswami’s case (supra), it (the Full Bench) laid down thus in Paragraph-12 of the report :

“There is no constitutional bar to the exercise of writ jurisdiction in respect of elections to Local Bodies such as, Municipalities, Panchayats and the like. However, as it is desirable to resolve election disputes

speedily through the machinery of election petitions, the Court in the exercise of its discretion should always decline to invoke its writ jurisdiction in an election dispute, if the alternative remedy of an election petition is available. So, their Lordships of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah, stated (para 14) :

“…..though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of cases.”

The said view of the Full Bench of the High Court of Madhya Pradesh being considered by the Supreme Court in S. T. Muthuswami v. K. Natarajan, , it has, in unequivocal terms, accepted that view stating thus in para 14 of the report :

“We are inclined 14 accept this view which lays down a salutary principle.”

The Supreme Court, which was concerned in that case with the error said to have occurred in the allotment of symbols to a candidate in the course of holding of the elections under the T. N. Panchayats Act, found that the High Court was not justified in exercising its jurisdiction under Art. 226 of the Constitution, by stating thus (para 15) :

“The Division Bench of the High Court against whose decision the present appeal by special leave is filed was of the view that the issuing of the Errata Notification by the Returning Officer amounted a very serious breach and interference under Art. 226 of the Constitution of India was called for. Taking into consideration all the aspects of the present case including the fact that the person who filed the writ petition before the High Court was not one of the candidates nominated by the Indian National Congress (I) and the fact that the President of the Tamil Nadu Congress (I) Committee had written that he had authorised the appellant to contest as the candidate on behalf of his party and he had

given his approval to respondent No. 6 contesting as a candidate on behalf of his party, we feel that the exercise of the jurisdiction by the High Court in this case under Art. 226 of the Constitution cannot be supported.”

31. When the decisions of the Supreme Court, to which we have referred herein-before, have clearly laid down as a matter of principle that after the commencement of election, even if such election relates to Local Boards the remedy of writ petition cannot be availed by for challenging any act or omission on the part of the Election Authorities, which may arise by non-compliance with the provisions of the Act or the Rules or the orders made thereunder except through an election petition by availing of the remedy provided in in that regard in the Act itself, we find it difficult to hold that the remedy of writ petition under Arts. 226 and 227 of the Constitution becomes available to question the act or omission of an Election Authority arising by non-compliance of the provisions of the Act to challenge either such act or omission or the result of election taking place on the basis of such act or omission.

32. However, we shall presently advert to the decisions of the Supreme Court and our Court relied upon by the learned single Judge in support of his view that the remedy of writ petition was rightly availed of by the writ petitioner (voter) to question the validity of Delimitation of Constituencies Notifications issued under sub-sec. (5) of S. 5 of the Act and the election to seats of Mandal Panchayat held pursuant thereto, and point out as to how and why none of those decisions could be regarded as supporting such view.

33. The decision of the Supreme Court in Atma Singh v. State of Punjab, being the main decision relied upon by the learned single Judge in support of his view that the remedy of writ petition was rightly availed of by the writ petitioner (voter) to question the validity of Delimitation of Constituencies Notifications issued under sub-sec. (5) of S.5 of the Act, and the election to seats of Mandal Panchayat held pursuant thereto, we shall advert to it at the first instance.

34. We have referred to the decision in Alma Singh’s ease (supra) as the main decision because of the learned Judge’s statements which read :

“In my view, the decision of the Supreme Court in Punjab Municipality’s case which dealt with the power of the Authorities to amend the Delimitation Notification, has considerable impact on the decision in this writ petition. Having had the benefit of that decision of the Supreme Court, it is but proper to interfere under Art. 226 of the Constitution in order to prevent the abuse of electoral process in the Local Bodies.”

That decision, if anything, illustrates the position that notwithstanding the worst damage caused due to election to a municipality held on account of a wrong Delimitation of Constituencies Notification, elections held to the seats in the Constituencies shall not be disturbed in a writ petition filed before the High Court under Art. 226 of the Constitution. The factual situation dealt with by the Supreme Court in that decision was the following :

A Notification dated August 2, 1976, under sub-sec. (3) of S. 5 of the Punjab Municipal Act, 1911, had been issued by the State Government for inclusion of certain local areas within the limits of a Municipality. A Grama Panchayat so included, challenged the validity of the said Notification by a writ petition filed in Punjab High Court. A learned single Judge of that Court dismissed that writ petition which resulted in the vacation of the stay of the impugned Notification granted earlier. On December 19, 1978, a Division Bench, which entertained a Letters Patent Appeal against the order of the learned single Judge, granted stay of the said Notification impugned in the writ petition. As a provision in the Punjab Municipal Act was amended making it obligatory for the State Government to hold election to the Municipality before June 30, 1979, election was held in 15 Wards of the Municipality as had been delimited earlier and with no fresh electoral rolls prepared for the Municipality including the local areas covered by the impugned Notification. After the completion of the

election, the election of all the returned candidates to the Municipality was challenged by a separate writ petition filed in the Punjab High Court by Atma Singh and others a persons representing about 1000 voters from the local areas included in the Notification which had been challenged earlier and pending consideration before the High Court. The High Court, by its order dated July 20, 1979, declined to set aside the election from 15 Wards of the Municipality challenged in the writ petition, but directed that the local areas covered in the Notification impugned in the writ petition shall be given representation. It is that order which was appealed against by the writ petitioners before the Supreme Court. Before the decision by the Supreme Court was rendered in the appeal on 2-4-1981, the Letters Patent Appeal where stay had been granted of the Notification of the Government including certain local areas in the Municipality, had been dismissed on April 1, 1980. The Supreme Court, though referred in the course of its judgment to the importance of the Delimitation of Constituencies to be made for constituting a Municipality from the representatives of its Wards, dismissed the appeal. In other words, it upheld the order of the High Court, by which the writ petition questioning the election to 15 Wards of the Municipality had been questioned on the ground of no delimitation of Wards having been made and no fresh electoral rolls having been prepared earlier to the actual holding of the elect ion to the Municipality. The Supreme Court repelled the contention urged before it that the election of the Councillors to various Wards of the Municipality, was invalidated because of the vacation of the stay order made in the Letters Patent Appeal on April 1, 1980, thus :

“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-sec. (2) of S. 13. The contention that with the vacation of the stay by the dismissal of the Letters Paten’ Appeal on April 1. 1980, the whole election would be invalidated, must, therefore, fail.”

Thereafter, the Supreme Court having referred to its awareness of the fact of the valuable

rights of voting and contesting elections lost by the petitioners and others, expressed its inability to interfere with the elections held to the Wards of the Municipality, by stating thus :

“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-sec.(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.”

Therefore, as we stated earlier, the Supreme Court, if anything, has made it abundantly clear that the writ petition is not a remedy available to question the elections to a representative body on the ground of invalidity of delimitation of constituencies of the electoral areas or preparation of electoral rolls.

35. The other decision of the Supreme Court relied upon by the learned single Judge in support of his view that the remedy of writ petition under Art. 226 of the Constitution was available to call in question the Delimitation of Constituencies Notification and the election held pursuant thereto, is of the State of Madhya Pradesh v. Devilal (supra). The learned Judge referring to that decision, has stated thus :

“As observed by the Supreme Court in , assuming that the Deputy Commissioner had the power to amend the notification Annexure-A in the manner he has done, the proper course would have been to notify all the persons concerned for making the changes not only in the delimitation of constituency and also in the allotment of seats to the respective constituency.”

To find whether the said support sought to be obtained by the learned Judge from the decision was available to him, it becomes

necessary to refer to the factual situation before the Supreme Court and its decision thereon.

M. P. Panchayats Act, 1962 (for short ‘the Panchayats Act’) provided for formation of a Panchayati Raj in Madhya Pradesh of three tiers, to wit, Grama Panchayat at lower level, Janapada Panchayat at mid level and Zilla Panchayat at the apex. Mandsaur District was divided into eight blocks, of which Manasa Block was one where a Janapada Panchayat had to be established. State Government had issued under Ss. 105 and 106 of the Panchayat Act a composite Notification dated August 31, 1965, signifying its intention to divide Manasa Block into 20 constituencies, from which the representatives of Janapada Panchayat were to be elected and invited objections thereto. After consideration of the objections raised, the Slate Government, by Notification dated September 26, 1969, divided that block into 20 constituencies with one representative to be elected from each constituency. Elections to Grama Panchayat in that block being held on November 8, 1970, the Collector notified the result of those elections on November, 14, 1970, and Grama Panchayat came to be constituted on that date with the elected members. While the members of the Grama Panchayat were directly elected from the concerned electorate of Grama Sabha areas, the members to the Janapada Panchayat for a block had to be indirectly elected by an electoral college comprising of the Panchas of the Gram Panchayats in such block. The result of election to the Janapada Panchayat had to depend upon the nature of the electoral roll prepared for each constituency in a block. While the process of election of members of Janapada Panchayat had commenced, the State Government sought to alter the constituencies of the block, by Notification dated November 25, 1970. It is the said Notification which was impugned in the Madhya Pradesh High Court by a writ petition filed under Art. 226 of the Constitution. A Division Bench of the High Court quashed the Notification holding, inter alia, that no power was invested in the State Government under S. 106 of the Panchayat

Act in that regard. When the matter came up before the Supreme Court on a Certificate granted by the High Court in that regard, the Supreme Court upheld the decision of the Madhya Pradesh High Court observing thus :

“….. As already stated, the elections to the Gram Panchayats were held on November 8, 1970 and on November 14, 1970 the Collector notified the result of the elections and the Gram Panchayats assumed office on that date. All of a sudden, while the process of election of members to the Janapada Panchayat was on, the State Government issued the impugned notification dated November 25, 1970 under sub-sec. (1) of S. 106 of the Act seeking to alter the Constituencies of the block. Normally, when the State Government in tends to alter or modify the limits of a block, it has to follow the procedure laid down in S. 370 of the Act. Sub-sec. (3) thereof confers a right on the person affected to raise objections in writing to the proposed alteration and casts a duty on the State Government to consider such objections, it is only upon compliance of the mandatory requirements of sub-sec, (3) that the State Government can proceed to issue a notification under sub-sec. (4) of S. 370 for the alteration of the limits of a block. That is the normal procedure provided which implies the giving of an opportunity to the persons affected. There was really no occasion for the State Government to have issued the impugned notification dated November 25, 1970, seeking to restructure the constituencies of the block in the midst of the election. Even if there was such a power, the State Government was in duty bound to publish the proposal giving an opportunity to the persons affected to raise their objections to the proposed alteration. The impugned notification dated November 25, 1970, issued by the State Government under sub-sec. (1) of S. 106 of the Act is therefore totally invalid.”

As seen from the factual situation and the decision of the Supreme Court thereon, we are unable to understand how the ratio of that decision, to which we have adverted, could have become applicable to the facts of the

case in the writ petition with which we are concerned. S. 370 of the Panchayat Act, to which their Lordships have referred, and on the basis of which the need to have provided an opportunity to the persons affected is indicated, it has to be stated, provides that the State Government may, by Notification, signify its intention to alter the limits of a block by including therein any local area in the vicinity thereof or by excluding there from any local area comprised therein, after affording an opportunity to the inhabitants of (sic) area/s affected to submit their objections. S. 370 of the Panchayat Act does not correspond to sub-sec. (5) of S. 5 of the Act with which we are concerned, but corresponds to S. 4 of the Act. The operation of the provision in S. 4 of the Act, it may be noted, arises at a stage well before the process of election for constitution of a Mandal Panchayat under S. 5 of the Act, commences. S. 4 of the Act, it is significant to note, provides for inviting objections in relation to alteration of the limits of a Mandal Panchayat as is provided in the corresponding S. 370 of the Panchayat Act in relation to Gram Panchayat. If power exercised by the Government by issuance of a Notification is referable to a power which could have been exercised by it at a time anterior to the commencement of election process needed for constitution of Mandal Panchayat, there is not alternative except questioning its validity by means of a writ petition under Art. 226 of the Constitution. In the said view of the matters, we cannot help thinking that the learned single Judge could not have derived any support from the decision of the Supreme Court in Devilal’s case (supra) for his view that the Errata Delimitation of Constituencies Notifications impugned in the writ petition could be questioned only by means of a writ petition filed under Art. 226 of the Conslitution.

36. The other decisions of this Court relied upon by the learned single Judge in support of his view that a writ petition under Art. 226 of the Constitution could be entertained after the commencement of the election to local body to challenge the Delimitation of Constituencies Notification issued

respecting the local body or election held pursuant thereto, are of Karegouda v. State of Karnataka (Writ Petn. No. 608/1960); (2) Allahabad Saheb v. State of Mysore. (1969) 17 Law Rep 757; (3) Kenchanagoud v. State of Karnataka, ILR (1979) 1 Rant 1092; (4) Ramesh v. State of Karnataka, (1981) 1 Kant LJ Sh N No. 44 and (5) B. Shivarma v. Election Officer, (1968) 2 Mys LJ 192.

37. Karegouda’s case (supra), no doubt, lays down that a writ petition could be entertained after the commencement of election to invalidate the Delimitation of Constituencies Notification issued under the Mysore Village Panchayat and Local Boards Act, 1959. For interfering with the Notification, all that has been said in that decision is that infraction of the statutory provisions is sufficiently a serious infraction and hence exercise of the Court’s jurisdiction under Art. 226 cannot be affected by reason of the election having been held pursuant to such Notification. This decision, therefore, cannot in our view, be regarded as one laying any legal principle on the question of entertaining a writ petition to question the Delimitation of Constituencies Notification under the Mysore Village Panchayat and Local Boards Act and the elections held pursuant thereto, after the commencement of the election.

38. In Allahabad Saheb’s case (1969 (17) Law Rep 757) (Mys) (supra), a Notification relating to Delimitation of Constituencies issued under S. 13 of the Mysore Municipalities Act, 1964, and the elections held pursuant thereto have been quashed on a writ petition filed under Art. 226 of the Constitution after the commencement of election. On behalf of the respondents in that petition, though it was contended relying on the decision of the Supreme Court in N. P. Ponnuswami’s case (supra) that it was not competent to the High Court to interfere in a petition under Art. 226 of the Constitution to question elections to the Municipality, that contention has been repelled by the Division Bench, on its view that the decision of the Supreme Court in N. P. Ponnuswami’s case (supra) relied upon was since rendered wholly on the basis of the wording of Art, 329 of the

Constitution, the same could not support the contention. The view so expressed in the matter by Division Bench indicates that the decision rendered in N. P. Ponnuswami’s case (supra) could not be applied to elections, held to a local board, in that, it related to elections to Parliament or either House of State Legislature having regard to Art. 329 of the Constitution. The view so taken by the Division Bench has ceased to be the correct view of the matter since the Supreme Court in Naimmal’s case Naimmal’s case (AIR 1975 SC 2140) (supra), referring to the decision in N. P. Ponnuswami’s case (supra), has ruled that in the absence of any express provision in the Act to the contrary, the principles enunciated by the Supreme Court in relation to election to Parliament or either House of State Legislature will equally apply to cases of elections to local boards also. Thus, the decision in Allahabad Saheb’s case (supra) cannot be regarded as one supporting the view taken by the learned single Judge as to the entertaining of a writ petition under Art. 226 of the Constitution calling in question the Delimitation of Constituencies Notification under the Act.

39. In Kenchanagoud’s case (ILR (1979) 1 Kant 1092) (supra), both the Notification issued under Section 5(3) of the Karnataka Village Panchayats and Local Boards Act determining the constituencies of the Panchayat and the election held pursuant thereto are quashed in a writ petition filed after the commencement of the elections, proceeding on the basis that no election petition could have been filed under that Act to question the validity of the Notification under Section 5(3) of the Act since that Notification had been issued at a time prior to the date of commencement of the election. In dealing with this question, we have held, having regard to the provisions of the Act and the decision of the Supreme Court, that issuance of Delimitation of Constituencies Notification will be an electoral matter and if the Notification issued does not conform to the requirements of any of the provisions of the Act, the election held pursuant thereto could be called in question by an election petition.

Therefore, the decision in Kenchanagoud’s case (supra) being no longer good law, cannot be regarded as one supporting the view taken by the learned single Judge as to the entertainability of writ petition in the instant case.

40. No doubt, in Ramesh’s case (1981(1) Kant LJ (SN) No. 44) (supra), a Delimitation of Constituencies Notification issued under S. 5(3) of the Karnataka Village Panchayats and Local Boards Act has been quashed in a writ petition filed under Art. 226 of the Constitution after the commencement of the election. But, the question whether a writ petition would lie in a case of the type is not decided therein. Hence, that decision cannot be regarded as one supporting the view of the learned single Judge in the matter.

41. In B. Shivanna’s case (1968 (2) Mys LJ 192) (supra), the question, which arose for consideration before this Court, was whether a Notification issued under S. 5(3) of the Mysore Village Panchayat and Local Boards Act, 1959, regarding Delimitation of Constituencies amending the earlier Notification issued thereunder, had to be regarded as one issued without jurisdiction. This Court held that such a Notification issued after the commencement of the election has to be regarded as one issued without jurisdiction and consequently quashed the Notification as also the election held pursuant thereto. The question whether a Delimitation of Constituencies Notification issued before the commencement of the election could be called in question by an election petition after the commencement of the election did not arise for consideration in that case. Thus, that decision cannot be regarded as one which bears on the question under consideration.

42. Hence, we hold that the remedy of a writ petition under Arts. 226 and 227 of the Constitution does not become available to question the act or omission of an Election Authority arising by non-compliance of the provisions of the Act to challenge either such act or omission or the result of election taken place on the basis of such act or omission, after issuance of election notification under R. 12 of the Rules.

Re. Question (6) :

43. As has already been pointed out, by the order under appeals, the writ petition filed by respondent-1 here (a voter from one of the constituencies of Thuruvanur Mandal Panchayat) allowed, Errata Delimitation of Constituencies Notifications (Annexures-B, C and D) relating to Thuruvanur Mandal Panchayat area impugned therein are quashed, the election of 26 returned candidates (respondents 3 to 28 in the writ petitions) from various seats of the Constituencies of Thuruvanur Mandal Panchayat area is declared void and those returned candidates are directed to vacate the seats from which they have been elected. This order calls to be set aside by reason of our decision on questions already dealt with. Yet, we shall see whether the said order is also liable to be set aside for the reason that the writ petition in which the order is made, was not “at all entertainable in exercise of this Court’s discretionary jurisdiction under Art. 226 of the Constitution as strongly contended on behalf of the appellants.

44. The contention of the appellants was that the writ petition filed by a voter of one constituency of Thuruvanur Mandal Panchayat calling in question election of 26 members of 13 constituencies of that Panchayat should no! have been entertained after about 3 months had elapsed from the date of declaration of the results of such election and when the election to Pradhan and Upa-Pradhan was due, even if the delimitation of constituencies in the area of that Panchayat had not been properly made.

45. It would be advantageous to refer to the doctrine of laches and how it has to be applied in refusing writ remedy generally and especially in election matters, before applying it to the instant case.

46. In Lindsay Petroleum Co. v. Prosper Armstrong Hurd Abraham Farewell and John Kemp (1874) 5 PC 221 : (22 WR 492 at p. 496), the doctrine of laches is elucidated by Sir Barnes Peacock thus :

“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical
doctrine. Where it would be practicably unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapses of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”

47. The above elucidation of the doctrine of laches having weighed with our Supreme Court in deciding The Moon Mills Ltd. v. M. R. Meher, President, Industrial Court, Bombay, AIR 1967 SC 1450, its view of the doctrine found therein reads (at p. 1454):

“It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also true that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party.”

48. Need to refuse writ to a person who fails to show that he has proceeded ex-peditiously after discovering that it was necessary to resort to it and especially where great public inconvenience will result from its use, is emphasised in a passage found at page 202 of the book ‘The Extraordinary Legal Remedies’ by Ferris and Ferris (1926 Edition) and reads:

“The writ will generally be refused in all cases where the petitioner fails to show that he has proceeded expeditiously after discovery that it was necessary to resort to it and especially where great public inconvenience will result from its use. In all such cases of public detriment or inconvenience, petitioner must act speedily, and any unreasonable delay will warrant refusal. In such cases, the rule of laches is applied and enforced with particular strictness.”

49. Laches or delay or conduct of a party in filing a writ petition to call in question an electoral matter muchless the election of returned candidate in an election, should make a High Court refuse to entertain such a writ petition in exercise of High Court’s discretionary writ jurisdiction, if the circumstances of a given case so warrant, is well settled.

50. In Ajjappa Pallappa v. Deputy Commissioner, (1969) 19 Law Rep 173, a Division Bench of this Court, by application of the Doctrine of Laches, refused to entertain a writ petition filed challenging therein a bye-election held for a seat in a constituency of village Panchayat under Mysore Village Panchayat and Local Boards Act, 1959. Bye-election challenged there was held on 16-10-1968. Result of election of returned candidate had been declared on 17-10-1968. Within 14 days thereafter, i.e., on 31-10-1968, writ petition challenging the election had been filed on the ground that election was held to a seat which was not available. This Court, relying upon the aforesaid Doctrine of Laches elucidated by Sri Barnes Peacock and approved by our Supreme Court in Moon Mills Ltd.’s case (AIR 1967 SC 1450) (supra), applied the same to refuse to entertain the writ petition. In so refusing, what weighed with this Court was the public inconvenience to be caused; the cost involved; time, energy and money spent by the returned candidate and the petitioner’s conduct in waiting to file the writ petition till the result of election of returned candidate was declared.

51. In Ashok Kumar v. Collector, Raipur, , our Supreme Court considered the question — whether delay in filing a writ petition should have been a good ground for the High Court to refuse

to entertain a writ petition challenging a matter concerning an electoral roll when the election to local Authority to be held on the basis of such electoral roll had commenced. It was a case where claims/objections to electoral rolls on which election of Councillors to Municipal Corporation of Raipur had to be held, were called for by giving 20 days time. Flection Notice having been issued after the finalisation of electoral rolls and nominations having been filed, scrutinised, list of contesting candidates having been announced, when the poll was due to take place to elect among the contesting candidates, writ petition was filed in the Madhya Pradesh High Court seeking the quashing of the electoral rolls and election’s calendar of events and the prevention of the election on the ground that the Rules relating to preparation of electoral rolls while required giving of 30 days time for claims or objections to draft electoral rolls, only 20 days time was given for the purpose. The High Court refused to entertain the writ petition as, in its view, there was no proper explanation for the delay of two months in filing the writ petition. The Supreme Court upheld the decision of the High Court clarifying the position as to refusal by High Court, entertainment of writ petitions in electrol matters thus:

“7. 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 disentitles a person to relief under Art. 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.”

52. To find whether the delay of about three months which had occurred in the filing of the writ petition out of which the present appeals have arisen, warranted refusal of discretionary remedy of writ petition under Art. 226 of the Constitution on the application of Doctrine of Laches as pointed out by our Court and Supreme Court, we shall refer to its facts and circumstances in which it has come to be filed.

53. Delimitation of Constituencies Notification determining the constituencies and allotting seats therein within the area of Thuruvanur Mandal Panchayat for the purpose of electing 26 members therefrom was done by the Deputy Commissioner by a Notification (Annexure-A) issued under sub-sec. (5) of S. 5 of the Act and published in the Karnataka Gazette dated 27-7-1986. That Notification had been amended by three Errata Notifications (Annexures-B, C and D) issued under sub-sec. (5) of S. 5 of the Act published in the Karnataka Gazette dated 27-11-1986, 24-12-1986 and 24-12-1986 respectively. Election Notification together with the calendar of events of the election to fill 26 seats from 13 constituencies of Thuruvanur Mandal Panchayat, which became available by reason of the said Delimitation Constituencies Notifications (Annexures-A, B, C and D), had been published on 30-12-1986. Nominations were filed for all the 26 seats by candidates seeking election therefrom. Scrutiny of the nominations had taken place. Nine candidates were declared elected after the time for withdrawal of nominations was over, as there was no contest for the seats concerned. Poll respecting contested seats had taken place on 20-1-1987. Declaration of result of election from 17 contested seats was made on 21-1-1987 by the Returning Officer of the election. Election of none of the 26 returned candidates was questioned by means of any election petition filed before the Election Tribunal (Munsiff) within 30 days as provided for in the Act. After a long lapse of time of about three months after the declaration of the result of election of 26 returned candidates and when the election of Pradhan and Up-Pradhan was due to be held among the 26 elected candidates, a voter from one of the 13 constituencies of Thuruvanur Mandal

Panchayat called in question the election of all the 26 returned candidates to various seats of that Panchayat on the ground that Errata Delimitation of Constituencies Notifications (Annexures-B, C and D) published in the Karnataka Gazette dated 24-12-1986 and earlier, were illegal, by filing a writ petition under Arts. 226 and 227 of the Constitution in this Court on 6-4-1987, the interim order sought therein being in the following terms:

“Issue an ad-interim order against respondents 3 to 28 restraining them from acting as members of the Mandal Panchayat. Thuruvanur, Chitradurga Taluk and participate in the meetings of the Mandal Panchayat for electing the Pradhan or Upa-Pradhana, pending disposal of this writ petition in the interest of justice.”

54. As seen from the above stated facts, the time elapsed between the dale of publication of the last alleged invalid Errata Delimitation of Constitueneies Notification, viz., 24-12-1986, and the date of filing of the writ petition to invalidate Errata Notifieation and the election held pursuant thereto, viz., 6-4-1987, is three months and twelve days. One person (voter) out of population of 10,400 and odd of Thuruvanur Mandal Panchayat, who had filed the writ petition, explains the inordinate delay in the filing of the writ petition, thus:

“There is no delay at all in presenting this writ petition, because the process of elections were over by the end of January and the State machinery was plunged in the post election developments. The petitioner could not even get at the election result sheets. As stated above the Tahsildar and the Sheristedar who were deeply influenced by the Jagalur Assembly MLA and interested in their own caste did not grant any certified copy of the relevant documents. The petitioner and his friends made frantic efforts from the beginning of February to get the notification documents. They were able to secure the same at Bangalore with great difficulty. The Tehsildar and the Sheristedar knew pretty well that by delaying the grant of copies, the illegal elections could become final and no remedy can be obtained by any Court of law. Having regard to this circumstances it is pre-eminently a fit case lo exercise the writ jurisdiction of this Hon’ble Court.”

In support of the plea put forth that copies of election result sheets were not given, some material is produced to show that copy application was made on 7-3-1987 to Mandal Panchayat and charges therefor was deposited on 9-10-1987. Though such result sheets could have been got on 21-1-1987 from the Returning Officer of the election when he announced the results, no reason is given as to why copies of such result sheets were sought from Mandal Panchayat. By the time the copy application was made nearly three months had elapsed from the date of publication of the alleged last illegal Delimitation of Constituencies Notification.

55. The learned single Judge has found the above explanation and the fact that some of the elected candidates had said that they had no objection for invalidating the election of all the 26 returned candidates and the substantial changes made by the Errata Delimitation of Constituencies Notifications did not warrant refusal of the remedy of writ. However, the learned single Judge did not find that the delimitation of constituencies and allotment of seats did not conform to the requirements of sub-sees. (2), (4) & (6) of S. 5 of the Act. All that he has said is that substantial changes had been made amending the first Delimitation of Constituencies Notification (Annexure-A). He has not, however, pondered over as to why some of the elected members wanted the election of all the 26 members to be set aside. As could be seen from the said explanation given by the writ petitioner, there is nothing which could be regarded as an explanation not to have challenged the errata delimitation Notifications (Annexures-B to D), the last of which was published in the Karnataka Gazette on 24-12-1986, either immediately or before the Notification for election was issued on 30-12-1986. If really any person as the writ petitioner was aggrieved by the Notifications so published as had brought about changes in the electoral areas and allotment of seats for such areas within Thuruvanur Mandal Panchayat, why he had to wail for completion of the elections to 26 seats in 13 constituencies of that Panchayat, is inconceivable and is not explained. Again, had such person to wait to challenge the errata delimitation Notifications till the election was due to be held among the elected members for Pradhanship and Upa-Pradhanship of the Mandal Panchayat, is a question unanswered. Thus, the inordinate delay of about three months and twelve days, which had occurred after the publication of the impugned Notifications, has no plausible explanation from the writ petitioner. The immediate object sought to be achieved by filing the writ petition, as becomes apparent from the ad-interim prayer made therein, to which we have adverted, was the prevention of the election scheduled to be held for the offices of Pradhan and Upa-Pradhan of the Mandal Panchayat, lest they may be occupied by members of the party in majority. Therefore, if anything, the writ petition filed by a voter, we are not left in doubt, is a glaring instance of how the writ jurisdiction of this Court is often sought to be abused by election strategists in their endeavour to prevent the normal functioning of democratic institutions by elected representatives. The writ petitioner, the voter, could have challenged the errata delimitation Notifications before the Election Notification was issued, if he was really adversely affected by such Notifications. But, he did not choose to do so. When the Election Notification was issued calling for nominations, he did not bother himself about the illegality of the delimitation Notifications. Again, when the declaration of results of returned candidates from 9 seats was made, he did not bother himself. Thercafer, when polling for contested seats took place and 17 returned candidates were declared elected from contested seats, he did not think of calling in question their election by filing an election petition or otherwise. Yet, all in a sudden, after three months has elapsed from the date of declaration of the result of election from contested seats, when election to Offices of Pradhan and Upa-Pradhan of the Panchayat was due to be held, he (the voter) filed the writ petition. In this situation, it becomes obvious that he (the voter) mast have filed the writ petition being coaxed by the minority party in the Panchayat to file such petition, particularly if we have regard to the interim prayer sought in the writ petition, to wit, for grant of an ad-interim order to prevent the election to be held for offices of Pradhan and Upa-Pradhan of the Mandal Panchayat. Thus, when the aforementioned facts of the writ petition and the aforementioned circumstances, in which it was filed, to wit, (i) that the writ petition was filed by a single voter of the Mandal Panchayat area with a population of more than 10,400, to annul the election of 26 duly elected members of that Panchayat from its 13 constituencies; (ii) that the annulment of election had been sought after a lapse of about three months from the date of declaration of the result of election; (iii) that the illegality of the delimitation of constituencies Notifications (Annexures-B to D), which had been made a ground for annulment of elections, had occurred prior to the commencement of the election by issuance of Election Notification and the time elapsed from the date of such last Notification was three months and twelve days; (iv) that it was not even said that the changes brought about by the alleged illegal delimitation Notifications did not conform to the criteria or requirements envisaged in deciding upon the electoral areas or allotment of seats; (v) that the grant of writ sought in the writ petition would bring about great public inconvenience and loss of enormous public money; (vi) that the grant of writ sought in the writ petition would jeopardise the democratic functioning of the Mandal Panchayat; (vii) that the voter’s (writ petitioner’s) conduct in not questioning the errata delimitation Notifications for over three months and twelve days and in having allowed the election process to be completed and returned candidates in the election to assume office and start functioning amounted to waiver of his right, if any, to challenge the errata delimitation Notifications; (viii) that the voter’s (writ petitioner’s) silence, which had allowed the election to take place on the basis of the alleged illegal delimitation Notifications, had made the contesting candidates in the election spend lot of energy and money in their election campaign and acquire the right to membership; and (ix) that the purpose of

the writ petition, as seen from the interim prayer sought in the writ petition was to prevent the majority party of the Mandal Panchayat electing Pradhan and Upa-Pra-dhan of that Panchayat, clearly warranted refusal of the entertainment of the writ petition by application of the Doctrine of Laches and just and reasonable exercise of discretionary power under Article 226 of the Constitution, we find that the learned single Judge, with respect to him. was not justified in entertaining the writ petition. The two grounds, which had weighed with him to condone the laches in the filing of the writ petition, namely, substantial changes brought about in the electoral areas and seats of the Mandal Panchayat by issuance of the impugned errata delimitation Notifications and the agreement of some of the returned candidates for the quashing of the elections of all the returned candidates, we must state, were of no real value. The first ground relating to substantial changes made in the electoral areas and the allotment of seats in the area of the Mandal Panchayat could not have been of any consequence, unless such changes did not conform to the criteria required to be followed and it was not even the case that such criteria had not been followed. Coming to the second ground that some of the returned candidates had themselves agreed for the setting aside of the election of all the 26 candidates, the same could not have been taken into account in condoning the laches inasmuch as the agreement expressed by them indicated that they were in minority in the Mandal Panchayat and they wished that the election of the members in majority should be annulled. Hence, the order of the learned single Judge under appeals, by which he has allowed the writ petition, calls to be set aside, in that, the writ petition should not have been entertained in exercise of the discretionary jurisdiction of this Court under Art. 226 or Article 227 of the Constitution.

In the result, we allow these appeals, set aside the order of the learned single Judge, dismiss the writ petition and discharge Rule Nisi issued therein.

However, we make no order as to costs.

56. Appeals allowed.