Case: Nanhoo Mal &amp; Ors Vs. Hira Mal &amp; Ors

To fill up a casual vacancy in the office of the President of the Municipal Board, Soron in the district of Etah in Uttar Pradesh, the District Magistrate issued notices to the members of the Board informing them that nomination papers should be filed in his office by September 26, 1974 and if necessary the election will take place on October 1, 1974. The first respondent thereupon filed a petition under Article 226 of the Constitution challenging the validity of the procedure adopted by the district Magistrate for holding the election and prayed for an order to the District Magistrate not to hold the election and prayed for an order to the District Magistrate not to hold the election on October 1, 1974. The election programme had been notified in the U.P. Gazette, dated September 21, 1974 but it was published in the Gazette, dated September 24, 1974.2. The objection to the procedure for election was based on the allegation that it did not conform to the provisions of Rule 6 of the U.P. Municipalities (Conduct of Elections of Presidents and Election Petitions) Order, 1964, which reads as follows :6. Appointment of date for nomination, etc. - (1) As soon as may be after the election of members of a board is completed at a general election within the meaning of Section 43 of the Act or a casual vacancy occurs in the office of President of a board, the District Magistrate shall, by notification in the official Gazette, appoint for the election to the office of President of the Board :(a) the date for making nominations which shall be a dated at least four days after the date of notification; and(b) the date for scrutiny of nominations which shall be the date next following the date fixed under clause (a); and(c) the last date for withdrawal of candidatures which shall be the third day after the date fixed for scrutiny of nominations; and(d) the date on which and the hours during which a poll shall, if necessary, be taken :Provided that the date for taking the poll shall be a date not more than five days after the last date fixed under clause (c).(2) On the issue of notification under sub-para (1), the Returning Officer shall gives public notice of the election in Hindi in Form I by affixing a copy of the notice at his office and another copy at the office of the Board and in such other manner, if any, as he may think fit and shall also cause to be despatched by post under certificate of posting a copy of the notice to the last known address of each members.Though there was a prayer in the writ petition for an order to the district Magistrate not to hold the election on October 1, 1974, the learned Judges who admitted the writ petition directed that the election would be subject to ultimate decision in the writ petition. Consequently the election took place on October 1, and the first appellant was declared elected. Thereafter the first respondent filed an application for impleading the first appellant and the Municipal Board as parties and also claimed a further relief for quashing the election proceedings that took place on October 1, 1974. The learned Judges allowed the petition and set aside the entire election proceedings relating to the election of the first appellant as the President of the Municipal Board.

Court's reasoning:
3. We are of the opinion that the whole approach of the learned Judges of the High Court to this problem wasthe 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 Rule 6, already referred to. Under the Act the non-compliance with any rule or order made under the Act or any provisions 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 Article 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 compliance with the rule in question. In any case that is a matter within the exclusive jurisdiction of the District Judge.It follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U.P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in Ponnuswamis case (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under Article 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 Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider. All the considerations applied in coming 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.