Civil Appeal No 1958 of 1980
Appeal by Special Leave from the Judgment and Order dated 20th July 1979 of the Punjab and Haryana High Court in Civil Writ Petition No 213579
P P Rao and C M Nayar for the Appellants
O P Sharma and M M Dhillon for Respondents Nos
1 5 section M Ashri  G K Bansal for the other appearing Respondents
The Judgment of the Court was delivered by SEN J
This appeal by special leave from a judgment of the Punjab  Haryana High Court raises a question of some complexity
The question is when there is a notification issued under sub section
3 of section 5 of the Punjab Municipal Act 1911 for inclusion of certain local areas within the limits of a municipality whether it is permissible for the State Government to hold elections in the municipality without delimitation of wards and preparation of fresh electoral rolls
It arises under the following circumstances
In exercise of their powers under sub section
3 of section 5 of the Punjab Municipal Act 1911 hereinafter referred to as the Act  the State Government of Punjab by notification dated August 2 1976 directed inclusion of certain local areas
The local areas so included are 1 Moranwali Panchayat Area 2 Grain Market Area 3 Guja Peer Basti 4 Jakhal Road 5 ITI Area 6 BDO Block 7 Tehsil Court Area and 8 Thei Area
The Gram Panchayat Moranwali challenged the validity of the said notification by a writ petition filed before the High Court
A learned Single 343 Judge granted an ad interim stay staying the operation of the impugned notification
The writ petition was dismissed by the learned Single Judge on October 23 1978
Thereupon the Gram Panchayat preferred a Letters Patent Appeal and prayed for grant of stay of operation of the impugned notification
On December 19 1978 a Division Bench passed the following order Admitted
Stay dispossession ad interim
Notice regarding stay
It is common ground that eventually the stay was confirmed by the Division Bench and remained operative till April 1 1980 when the Letters Patent Appeal was dismissed
In the meanwhile the State Government decided to hold the elections of councillors of the Sunam Municipality on the basis of the old municipal limits ie from the existing 15 wards along with those of the 42 other municipalities since proviso to sub section
3 of section 13 of the Act inserted by Punjab Act 18 of 1978 as amended by Punjab Act 2 of 1979 made it obligatory for the State Government to hold such elections before June 30 1979
Accordingly the Deputy Commissioner issued a notification on April 6 1979 under r 3 of the Election Rules 1952 specifying that the elections in the municipality shall be held on June 10 1979
On June 23 1979 ie after the whole process of election was over the appellants who seek to represent about 1000 voters from the local areas newly added to the municipal limits filed a writ petition in the High Court challenging the election as null and void on the ground that there was no delimitation of wards and no fresh electoral rolls were prepared
The High Court by its order dated July 20 1979 declined to set aside the elections held but directed that the local areas be given representation under sub section
5 of section 5 of the Act
In support of the appeal there is a two fold contention advanced
In the first place the submission is that when a local area is included within a municipality elections cannot be held without delimitation of wards and preparation of fresh electoral rolls and secondly the submission is that in any event with the vacation of stay the election was invalidated
The first of these submissions is unexceptionable but it does not arise and the second appears to us to be wholly devoid of substance
Sub section
5 of section 5 of the Punjab Municipal Act 1911 which is relevant for our purposes reads as follows 344 5 When any local area included in a municipality under sub section 3 is a Sabha area or a part thereof under the Punjab Gram Panchayat Act 1952 representation to the inhabitants of the local area so included on the committee of the municipality in which local area is included shall be given in the prescribed manner
The Act does not prescribe the manner of giving representation to the inhabitants when any local area included in a municipality under sub section
3 of section 5 is a Sabha area unlike that in the case of a municipality or a notified area for which an express provision is made in sub section 6 thereof
The matter therefore falls to be governed by the Election Rules 1952 and the Delimitation of Wards of Municipalities Rules 1972 framed by the State Government in exercise of their powers under section 240 1 b and c and section 258 of the Act
Whenever there is a change in the limits of a municipality the State Government cannot proceed to hold election of councillors without delimitation of the municipality into wards
The delimitation of wards a delicate and important task
is entrusted to a Delimitation Board constituted under r 3 of the Delimitation of Wards of Municipalities Rules 1972 and under r 4 thereof it is the duty of the Delimitation Board to effect a re division of a municipality
That rule reads thus 4
Functions of the Board it shall be the duty of the Board i to divide the Municipality into such number of wards as may be necessary having regard to the number of elected members prescribed by the State Government for the Committee and the number of seats reserved for members of the Scheduled Castes and ii to re adjust the wards as and when the limits of the Municipality are altered or there is increase in population of the Municipality or there is abnormal variation in population or voting figures of some of the wards of the Municipality which requires such re adjustment
In the delimitation of wards the Board must observe the principles laid down in r 6 namely 1 all wards shall as far as practicable be geographically compact areas and in delimiting them due regard shall be had to physical features existing boundaries of administra 345 tive units if any facilities of communication and public convenience 2 wards in which seats are reserved for the Scheduled Castes shall be located as far as practicable in those areas where the proportion of their population to the total population of the municipality is the largest and 3 each municipality shall be divided into wards in such manner that the population of each ward as far as practicable is the same throughout the municipality with a variation upto 10 per cent above or below the average population figures
While making a re division it may not be possible to achieve mathematical perfection but there must definitely be a substantial compliance with the requirement that every person should have an equal vote
The whole purpose of delimitation of municipalities into wards is to ensure that every citizen should get a fair representation in the municipalities
When a municipality is re constituted by the inclusion of any local area within the limits of a municipality under sub section
3 of section 5 or by the exclusion of any local area from the limits of a municipality under section 7 ie when there is an alteration of the limits of the municipality there must of necessity be a division of the re constituted municipality into new wards without which the elections cannot be held
There can be no disenfranchisement of a part of the electorate of a municipality
The question was dealt with at some length by the Gujarat High Court in Bhaichandbhai Maganlal Shah vs The State of Gujarat  Ors
and it was observed It must follow logically and inevitably from this proposition that the constitution of wards dividing the whole of the municipal district is a sine qua non of a valid election
If no wards at all are constituted in the municipal district the machinery of election cannot go through and equally the machinery of election cannot go through if wards are constituted in respect of a part of the municipal district and the other part is not divided into any ward or wards
In such a case there would be lists of voters for the wards which are constituted out of a part of the municipal district but there would be no lists of voters so far as the other part of the municipal district is concerned and no one from that part would be qualified to vote or to stand as a candidate for the election and no Councillors being elected by 346 that part there would be no representation of that part on the municipality
Where such a situation arises it is difficult to see how the Municipality can be said to be a Municipality for the whole of the municipal district within the meaning of section 9
We approve of the view taken by the Gujarat High Court
There can be no dispute with the principle that the State Government without re constituting a municipality into new wards cannot proceed to hold an election of councillors when there is an extension of the municipal limits but the difficulty is about the applicability of that principle to the facts of the present case
There is no denying the fact that the effect of the stay order passed by the learned Single Judge staying the operation of the notification issued under sub section
3 of section 5 was to put the said notification in abeyance with the result that the local areas to which it related were not brought within the municipal limits
It is also an undisputed fact that the stay order passed by the learned Single Judge was in force from August 2 1978 to October 23 1978
It is however urged that with the dismissal of the writ petition by the learned Single Judge on October 23 1978 the impugned notification was brought into effect and therefore the State Government could not proceed with the election without delimitation of wards and preparation of fresh electoral rolls
We are afraid the contention cannot be accepted
The case presents a rather disturbing feature
There were drastic changes brought about in section 13 of the Act dealing with the term of councillors leading to the supersession of all municipalities in the State and casting an obligation on the State Government to hold fresh elections of councillors before June 30 1979
In these circumstances the Division Bench should have acted with greater circumspection
On the contrary the Division Bench on December 19 1978 passed a stay order staying the dispossession of the Gram Panchayat although the Gram Panchayat had applied for staying the operation of the impugned notification
It is somewhat unfortunate that the stay order passed by the Division Bench was couched in rather ambiguous terms but it had virtually the same effect as the one passed by the learned Single Judge
It is difficult to comprehend the distinction between stay of dispossession of the Gram Panchayat and stay of operation of the impugned notification
Apparently the Division Bench without applying its mind passed an order staying dispossession of the Gram Panchayat failing 347 to realise that the effect of stay would dislocate the whole electoral process
When a local area sought to be brought within the limits of the municipality by the issue of a notification under sub section
3 of section 5 was kept out of such limits by reason of the stay order passed by the Division Bench there would obviously be no delimitation of the municipality into new wards
There was some doubt created about the purport and effect of the stay order passed by the Division Bench
This brought about an inevitable chain of events
After the Division Bench passed the order on December 19 1978 the State Minister for Transport who represented the Sabha Areas in the State Legislative Assembly wrote to the Minister for Local Self Government to postpone the elections scheduled to be held for the municipality
When the exact nature of the stay order was brought to the notice of the Minister he agreed with the view of the Local Self Government Department that the elections to the municipality could not be held without a delimitation of the municipal area
Eventually the State Government had no other alternative but to hold the election of the councillors on the basis of the existing limits of the municipality ie from the existing 15 wards due to the amendment of Proviso to sub s3 of s13 of the Act by Punjab Act 2 of 1979 which made it obligatory for the State Government to hold the election before June 30 1979
There can be no doubt that the State Government acted with the best of intentions in deciding to hold the elections
The election so held on June 10 1979 was a valid election and the councillors elected are entitled to run their full term of five years as provided by sub s2 of section 13
The contention that with the vacation of the stay by the dismissal of the Letters Patent Appeal on April 1 1980 the whole election would be invalidated must therefore fail
We are distressed to find that due to the stay order passed by the Division Bench a large number of inhabitants of the local areas brought within the municipal limits under sub s3 of s5 of the Act who were otherwise eligible to be enrolled as voters have thereby been deprived not only of their valuable right to vote at the election but also of the right to contest as a candidate for election as a councillor from any of the wards of the municipality or to the office of the President or the Vice President
But there is little that can be done in the matter at this stage
Driven to this situation brought about by the stay orders of the High Court there is no other alternative but to direct that 348 the local areas included in the municipality under sub section
3 of section 5 should be formed into a ward or wards and representation given to them under sub section
5 of section 5 of the Act
The term of the councillors so elected from such local areas shall be co terminus with the term of the councillors already elected from the existing 15 wards
We are assured by learned counsel for the State that the State Government shall take immediate steps to comply with this direction
This shall be a purely interim arrangement necessitated by the somewhat unfortunate stay orders passed by the High Court
The interim arrangement cannot obviously extend beyond the term of the present council
We hope and trust that the State Government shall in the meanwhile take steps to constitute a Delimitation Board under r 3 of the Delimitation of Wards of Municipalities Rules 1972
After the delimitation of the municipality into new wards the State Government shall proceed to re fix the number of councillors of the re constituted municipality under section 11 prescribe the number of elected councillors afresh as required under cl
a of sub section
1 of section 12 of the Act and issue necessary directions for the preparation of fresh electoral rolls as required under rr 8 and 8A of the Election Rules
In the result the appeal fails and is dismissed
There shall be no order as to costs
SR Appeal dismissed


Summary:
In exercise of their powers under sub section 3 of section 5 of the Punjab Municipal Act 1911 the State Government by its Notification dated August 2 1976 directed inclusion in Sunam Municipality of eight local areas including Moranwali Gram Panchayat which challenged the validity of the said notification by a writ petition filed before the High Court and obtained stay of operation
Under the Election Rules of 1952 and the Delimitation of Wards of Municipalities Rules 1972 whenever there is a change in the limits of the municipality the State Government cannot proceed to hold election of councillors without delimitation of the municipality into wards
However since proviso to subsection 3 of section 13 of the Act inserted by Punjab Act 18 of 1978 as amended by Punjab Act 2 of 1979 made it obligatory for the state Government to hold the election before June 30 1979 along with those of the 42 other municipalities the election of the councillors of the Sunam Municipality was also held on June 10 1979 on the basis of the old municipal limits that is from the existing 15 wards
On June 23 1979 the appellants who seek to represent about 1000 voters from the local areas newly added to the municipal limits filed a writ petition in the High Court challenging the election as null and void on the ground that there was no delimitation of wards and no fresh electoral rolls were prepared
The High Court by its order dated July 10 1979 declined to set aside the elections held but directed that the local areas be given representation under sub section5 341 of section 5 of the Act
Hence the appeal after obtaining special leave of the Court
Dismissing the appeal the Court  HELD 1
The State Government without reconstituting a municipality into new wards cannot proceed to hold an election of councillors when there is an extension of the municipal limits
346 C 2
The whole purpose of delimitation of municipality into wards is to ensure that every citizen should get a fair representation in them municipalities
When a municipality in reconstituted by the inclusion of any local area within the limits of a municipality under sub section 3 of section 5 or by the exclusion of any local area from the limits of a municipality under section 7 that is when there is an alteration of the limits of the municipality there must of necessity be a division of the reconstituted municipality into new wards without which the elections cannot be held
There can be no disenfranchisement of part of the electorate of a municipality
345 C D 3
But in the instant case the said principle could not be applied due to the stay order passed by single Judge of the Punjab High Court which was in force from August 2 1978 to October 23 1978 and thereafter till April 1 1980 consequent to the order of stay of dispossession by the Division Bench dated December 19 1978 in the Letters Patent Appeal preferred by the Gram Panchayat Moranwali
When a local area sought to be brought within the limits of the municipality by the issue of a notification under sub section 3 of section 5 was kept out of such limits by reason of the stay order passed by the Division Bench there could obviously be no delimitation of the municipality into new wards
346 C D 347 B A 4
To contend that with the dismissal of the writ petition on October 23 1978 the impugned notification was brought into effect and therefore the State Government could not proceed with election without delimitation of wards and preparation of fresh electoral rolls is incorrect
It is equally incorrect to say that with the vacation of the stay by the dismissal of the Letters Patent Appeal on April 1 1980 the whole election would be invalidated
The Election held on June 10 1979 were valid and the councillors elected are entitled to run their full term of five years as provided in section 13
The State Government acted with the best of intentions in deciding to hold the elections
The State Government had no other alternative but to hold the election of the councillors on the basis of the existing limits of the municipality that is from the existing 15 wards due to the amendment of proviso to subsection 3 of section 13 of the Act by Punjab Act 2 of 1979 which made it obligatory for the State Government to hold the elections before June 30 1979
347 ED Bhaichandbhai Maganlal Shah vs The State of Gujarat and Ors  approved 6
In view of the fact that a large number of inhabitants of the local areas brought within the municipal limits under sub section 3 of section 5 of the Act 342 who were otherwise eligible to be enrolled as voters but for the stay by the High Court have thereby been deprived not only of their valuable right to vote at the election but also the right to contest as a candidate for election as a councillor from any of the wards of the municipality or to the office of the President or the Vice President the Court directed 1 that the local areas included in the municipality should be formed into a ward or wards and representation given to them under sub section 5 of section 5 of the Act ii that the term of the councillors so elected from such local areas shall be co terminus with the term of the councillors already elected from the existing 15 wards and iii that this shall be a purely interim arrangement necessitated by the somewhat unfortunate stay order passed by the High Court and that obviously it cannot extend beyond the term of the present council
347 G 348 B