Hon'ble Mushaffey Ahmad,J.
(Delivered by R.K.Agrawal,J.) By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Krishna Gopal Varshney, seeks the following reliefs:
1. Issue a writ, order or direction in the nature of certiorari for quashing the impugned notification dated 25.4.2012 issued by respondent no.1 under section 9-A(5)(3) of the U.P. Municipality Act.
2. Issue a writ, order or direction in the nature of mandamus directing the respondents to decide the objection filed by the petitioner after complying the ingredients of section 9-A (5)(1)(f) of the U.P. Municipality Act, 1916.
3. Issue a writ, order or direction in the nature of mandamus, restraining the respondents from holding the election on the basis of impugned notification dated 25.4.2012.
4. Issue any such other and further order which this Hon'ble Court may deem fit and proper under the circumstances of the case.
5. Award the cost of the writ petition to the petitioner against the respondents.
By way of an amendment application filed on 28th May, 2012 which was allowed by the Court vide order dated 29th May, 2012, the petitioner has added the following relief:
1A. Issue a writ, order or direction in the nature of certiorari to summon the record regarding the publication of notification dated 23.5.2012 from the concerned authority and to quash the notification 23.5.2012 (Annexure -7) to the writ petition.
FACTS OF THE CASE:
Briefly stated the facts giving rise to the present writ petition are as follows:-
The petitioner is resident of Mahavirganj, Jalesar, District Etah. He is stated to be interested in the election of the office of the Chairperson of Nagar Palika Parishad, Jalesher. The State Government through its Special Secretary, Nagar Vikash Anubhag, Lucknow vide notification dated 25th April, 2012 purporting to be in exercise of powers under sub-section (5)(1) of section 9-A of the U.P. Municipalities Act, 1916 (hereinafter referred to as the 'Act') reserved the office of the Chairperson of Nagar Palika Parishad, Jaleser for Scheduled Caste. Objections were invited by 3rd May, 2012. The petitioner filed his objection on 1st May, 2012. In the objection it was stated by the petitioner that in the elections held in the year 2006, the office of the Chairperson of Nagar Palika Parishad, Jalesar was reserved for the Scheduled Caste which violates the provisions of sub-section (5)(1)(f) of section 9-A of the Act as it prohibits making reservation for the same category which was done in the previous election. Various other objections were raised. The petitioner apprehended that the State Government is of the view that clause (f) of sub-section (5)(1) of section 9-A of the Act is not attracted to the present election and determined to publish the final notification on the basis of the draft notification dated 25th April, 2012 on some legal opinion obtained from the Advocate General, Uttar Pradesh and inviting objections are merely an eye wash. On this apprehension the petitioner approached this Court by filing the present writ petition on 15th May, 2012. During the pendency of the writ petition the State Government decided the objection filed by the petitioner by rejecting the same and vide notification dated 23rd May, 2012 it had published the final list of reservations made for the office of the Chairperson of the various Nagar Palika Parishad. The office of the Chairperson of the Nagar Palika Parishad, Jalesar. Etah has once again been reserved for Scheduled Caste as already proposed in the notification dated 25th April, 2012. The notification dated 23rd May, 2012 has been issued mechanically without application of mind by rejecting the objection filed by the petitioner and the earlier notification dated 25th April, 2012 remains unchanged, which is in complete ignorance of the provisions of the Act. The view of the State Government treating the present election to be the first election of the local bodies after the Amending Act No. 25 of 2006 came into force is erroneous as the present election cannot be treated as the first election. Further the notification dated 23rd May, 2012 is hit by the provisions of section 9-A(5)(1)(f) which provides that a seat which has been reserved for a particular caste/category in the previous election shall not be reserved for the same in the next election.
In the counter affidavit filed by Sri Prakash Singh, Special Secretary, Urban Development, Government of Uttar Pradesh, Lucknow reservation of the office of the Chairperson of various Nagar Palika Parishad/Nagar Panchayat has been justified on the ground that the U.P. Amending Act No. 25 of 2006 was not a re-enactment of the provisions of the Ordinance Nos. 3 and 4 of 2006 but the provisions of reservation and allotment of seats were modified and altered with respect to the reservation and allotment. Therefore the present election has to be treated as the first election. The provisions of sub-section (5)(1)(f) of section 9-A of the Act cannot be invoked. Apart from it, a stand has been taken that the notification dated 25th April, 2012 is only tentative reservation of various posts of Nagar Palika Parishad / Nagar Panchayat and a final reservation is yet to be made. The objection regarding maintainability of the writ petition has also been raised on the ground that the process of the election has been set into motion by issuance of the notification tentatively providing reservation of seats in favour of Schedules Castes, Scheduled Tribes, other backward classes including women and is an essential and intrinsic step of the election process. Thus the writ petition preferred by the petitioner is not maintainable. It has also been stated in the counter affidavit that the term of the elected Municipal bodies in the State was ending on or about 15th -20th November, 2011 and the process of drawing up a list of office to be reserved started. While processing final electoral college and the reservation of seats was going on, the Lucknow Bench of this Court passed an order on 19th October, 2011 in Civil Misc. Writ Petition No. 53357 of 2011 providing that all formalities must be completed latest by 31st October, 2011 and the notification for election be issued consequently. Several writ petitions were filed at the Lucknow Bench challenging the provisions of U.P. Act No. 23 of 2005 in terms by which under the provisions of section 43-D (4) of the Act, the State Government came to be empowered to appoint an Administrator, who would look after the affairs of the Municipal Council till such time as a newly elected body was constituted. The Lucknow Bench of this Court was pleased to pass an interim order dated 15.11.2011 providing that the election of the Municipal Corporation be held and the elections themselves be notified within two weeks. The aforesaid batch of writ petitions were finally allowed vide judgment and order dated 5.12.2011. The Court declared U.P. Act No. 23 of 2005 as ultra vires the Constitution of India. It further directed the State Government to complete all necessary formalities for holding election by 18.12.2011 and notification for election be issued on or before 19th December, 2011. The State Government preferred Special Leave Petition No. 34436 of 2011 before the Hon'ble Supreme Court. The Hon'ble Supreme Court vide order dated 13.12.2011 directed the State Government to complete all process required by the Election Commission to notify the date of election latest by 11th February, 2012. Subsequently the said order was modified by the Hon'ble Supreme Court vide order dated 1st February, 2012 by extending time till 15th April, 2012. The State Government issued notification dated 15.3.2012 and 27th March, 2012 providing for a tentative reservation of seats to the office of Mayor and President treating these elections to be subsequent elections and seats reserved in cyclic order. Objections were received. The matter was referred to the Law Department of the Government of Uttar Pradesh and it opined that the elections being conducted is the first election in accordance with the provisions of the Statute as they stood amended vide U.P. Act No. 25 of 2006. The State Government also sought opinion of the learned Advocate General who also opined that the instant elections are liable to treated as first election. On the basis of the opinion of the learned Advocate General, an application for extension of time was filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court vide order dated 16th April, 2012 granted time till 31st May, 2012 for completion of process of reservation of seats for municipal elections in the State of Uttar Pradesh.
In the rejoinder affidavit filed on behalf of the petitioner the submissions made in the counter affidavit have been denied and it has been reiterated that the objections have been rejected mechanically and without application of mind. It has further been stated that the Hon'ble Supreme Court has only directed the State Government to complete all formalities by 31st May, 2012 but the Hon'ble Supreme Court has not mentioned nor has intended that the formalities be completed ignoring the provisions of the Act. It has further been stated that the present election cannot be treated as first election but a subsequent election as the election in the year 2006 was held when the U.P. Act No. 25 of 2006 had been on the Statute Book and provisions of section 9-A (5)(1))(f) of the Act has to be given effect to.
We have heard Sri K.N.Tripathi, learned Senior Advocate, assisted by Sri Rakesh Kumar Singh, learned counsel appearing for the petitioner, Sri S.P.Gupta, learned Advocate General along with Sri C.B.Yadav, learned Additional Advocate General, assisted by Sri Ram Krishna, learned counsel appearing on behalf of the State respondents and Sri P.K.Misra, learned counsel appearing for the State Election Commission.
RIVAL SUBMISSIONS:
Sri K.N.Tripathi, learned senior counsel submitted that the writ petition was presented before this Court on 5th May, 2012 which came up on 8th May, 2012 when the learned standing counsel was directed to obtain instruction and the matter was to be placed before the Court on 14th May, 2012. On 14th May, 2012 the learned standing counsel had produced the schedule as fixed by the State Government for deciding objections in which it was mentioned that the objection shall be decided by 21st May, 2012. The matter was directed to be placed before the Court on 22nd May, 2012. On 22nd May, 2012 when the matter was taken up, a statement was made by the learned standing counsel that no notification finalising reservation shall be issued till 28th May, 2012. However, this statement was not recorded and it is not open to the State to misrepresent. The learned standing counsel, however, denied making any such statement. As the matter was not before this Court on 22nd May, 2012 we are not going into this issue and treat it as closed.
According to Sri Tripathi, learned senior counsel, the provisions of reservation of various categories of persons in Municipal election were initially provided under sub-section (5)(1) of section 9-A of the Act and it provided for reservation as may be prescribed by Rules. Rules 6 and 6A of the U.P. Municipalities (Reservation and Allotment of Seats of Offices) Rules, 1994, hereinafter referred to as the 1994 Rules, framed by the State Government provided for reservation. The validity of sub-section (5)(1) of section 9-A of the Act as also Rules 6 and 6A of the 1994 Rules came up for consideration before this Court in the case of Heera Lal Umar vs. State of U.P. and others (2006) 1 UPLBEC 897, wherein this Court struck down the aforesaid provisions as ultra vires. Thereafter the State Government promulgated Ordinance No. 3 of 2006 on 12th July, 2006 providing for reservation for the office of Chairperson of various Nagar Palika Parishad / Nagar Panchayat which was subsequently replaced by U.P. Act No. 25 of 2006. According to him in the Ordinance No. 3 of 2006 as also in U.P. Act No. 25 of 2006 there were specific provision for rotation of reservation of the office of the Chairperson of various categories so that in the next election it may not be repeated. The provisions of sub-section (f) of section 9-A (5)(1) of the Act does not change the position as it existed in the Ordinance. The office of the Chairperson of Nagar Palika Parishad, Jalesar was reserved for Scheduled Caste in the election held in the year 2006 and the same has again been reserved and allotted for the Scheduled Caste which is in clear violation of the provisions of sub-section (5)(1)(f) of section 9-A of the Act. He further submitted that the Hon'ble Supreme Court had at no point of time held that the process of present election of local bodies which are going to be held is the first election. The State Government had only applied for extension of time pointing out its difficulty and grant of extension of time of the Hon'ble Supreme Court would not imply that the legal position placed before it had been accepted. He further submitted that the entire action is actuated by malice in law as the State Government had acted in gross violation of the statutory provisions provided for reservation. Thus the order rejecting the petitioner's objection as also the notification dated 23rd May, 2012 is liable to be set aside and a direction be issued to the respondent no.1 to reserve the office of the Chairperson of the various Nagar Palika Parishad/ Nagar Panchayat including that of Jalesar, Etah in accordance with the statutory provisions of sub-section (5)(1) of section 9-A of the Act. In support of his submission he has relied upon a decision of the Hon'ble Supreme Court in the Case of Ravi Yashwant Bhoir vs. Collector (2012) 4 SCC 407.
Sri S.P.Gupta, learned Advocate General, raised a preliminary objection regarding maintainability of the writ petition. According to him process of election starts with the issue of the notification dated 25th April, 2012 by the State Government on asking all concerned to file objections, if any, in respect of the reservation of seats published tentatively for the office of the Chairperson of the various Nagar Palika Parishad/ Nagar Panchayat and Municipal Corporations and in any event it had started with the issuance of the notification by the State Election Commission on 25th May, 2012 and, therefore, in view of the mandatory prohibition under Article 243 ZG of the Constitution of India, the present writ petition should not be entertained. In support of the aforesaid submission he has relied upon the following decisions:
1.N.P.Punnuswami vs. Returning Officer (AIR 1952 SC 64);
2.Anugrah Narain Singh vs. State of U.P. and others ( 1996) 6 SCC 303;and
3.Shri Sant Satguru Janardan Swami vs. State of Maharashtra and others ( AIR 2001 SC 3982);
He further submitted that the Hon'ble Supreme Court after considering the dispute relating to the first election and subsequent election, on the basis of the legal opinion received by the State Government that the current election was first election, extended the date for completing the process of election upto 31st May, 2012 and if the Hon'ble Supreme Court wanted the process of election to be completed according to the earlier view i.e. treating the present election as subsequent election, there was no need to extend the date. According to him the dispute in regard to the legality of current election is pending before the Hon'ble Supreme Court. One person had filed an application for impleadment which has been allowed but the application seeking clarification has been dismissed. In this view of the matter as the Hon'ble Supreme Court is monitoring the current election, this Court should not entertain the writ petition and delve into the matter. In support of the aforesaid submission he has relied upon a decision of the Hon'ble Supreme Court in the case of Union of India vs. Jaiswal Coal Co. Ltd. and others (1999) 5 SCC 733, He referred to I A No. 4 of 2012 seeking modification of the order dated 1st February, 2012 passed by the Hon'ble Supreme Court, a copy of which has been filed as Annexure CA 8 to the Counter affidavit, particularly paragraph 10 of the counter affidavit and also the order dated 16th April, 2012 passed by the Hon'ble Supreme Court whereby time has been extended till 31st May, 2012. Emphasis was laid on the following part of the order dated 16th April, 2012 passed by the Hon'ble Supreme Court:
"Having heard the learned Solicitor General and the other parties to the proceedings and in view of the opinion that has been set out in paragraph 10 of the application, we allow the appoication and grant time till 31st May, 2012, for completion of the process of reservation of seats for the Municipal Elections in the State of U.P."
and submitted that the Hon'ble Supreme Court had accepted the opinion given by the learned Advocate General and, therefore, the present election is the first election.
According to Sri Gupta, learned Advocate General clause (f) of sub-section (5)(1) of section 9A of the Act as inserted by U.P. Act No. 25 of 2006 was materially different and had completely altered the position regarding reservation of various categories. This provision was not there in the U.P. Ordinance No. 3 of 2006 and, therefore, the election held by complying the provisions of U.P. Ordinance No. 3 of 2006 cannot be treated as the first election and the present election can not be treated as a subsequent election. Referring to section 4 of the U.P. Act No. 25 of 2006 which contained the repeal and saving clause he submitted that by this provision whatever action has been taken under the Ordinance No. 3 of 2006 was in force, has been treated to be an action taken under the provisions of the Act, in case no such provision existed in the Ordinance but is justifiable under the provisions of Act. It only validates such action and nothing more. The legal fiction cannot be extended beyond the object for which it has been created. In support of the aforesaid submissions he has relied upon the following decisions:
1.Bengal Immunity Co. Ltd. vs. State of Bihar and others (AIR 1955 SC 661; and
2.Commissioner of Income-tax, Bombay vs. Amarchand N. Shroff (AIR 1963 SC 1448.
Sri Gupta, therefore, submitted that the writ petition is liable to be dismissed on merits also.
Sri P.K.Mishra, learned counsel appearing for the State Election Commission submitted that when the election process has been set into motion in view of the specific provisions contained in Article 243 ZG of the Constitution of India this Court should not entertain the writ petition and even if the the elections are under challenge the Court should not pass any order so as to postpone or delay the elections. In support of his submission, he has placed reliance on the following decisions:
1.N.P. Punnu Swami vs. Returning Oficer Nanakkal Constituency, Namakkal and others (AIR 1952 SC 64);
2.Mohinder Singh Gil and another vs. The Chief Election Commissioner, New Delhi & others ( AIR 1978 SC 851);
3.Kishan Singh Tomar vs. Municipal Corporation of the City of Ahmadabad and others ( 2006(9) JT 320); and
4.Lakshmi Charan Sen vs. A.K.M. Hassan and others ( AiR 1985 SC 1233).
In rejoinder Sri K.N.Tripathi, learned senior counsel, submitted that it is the paramount duty of the superior Court, like the High Court to ensure that free and fair elections are held in the State. Free and fair elections imply that the elections are to be held in accordance with the statutory provisions. In the U.P. Ordinance No. 3 of 2006 which was promulgated on 12th July, 2006 reservation of Scheduled Caste, Scheduled Tribes, Backward Classes and women for the office of the President, Vice President of the Municipal Council and Nagar Panchayats have been provided. In the said Ordinance separate specific proviso was added in respect of the reservation to women belonging to Scheduled Castes, Scheduled Tribes and other Backward Class. It was also provided that post alloted in an election to the women belonging to these categories shall not be allotted to the women belonging to the said categories in the election immediately succeeding it. The Ordinance has been replaced by U.P. Act No. 25 of 2006 which came into force on 12th July,2006. However in the Act separate specific provisions contained in the Ordinance have been replaced by clause (f) of sub-section (5)(1) of section 9-A of the Act. The proposed reservation list dated 25th April, 2012 as also the final list as notified on 23rd May, 2012 does not comply with the provisions of sub-section (5)(1)(f) of section 9-A of the Act and, therefore, it cannot be said to be a fair election. He relied upon the decision of the Hon'ble Supreme Court in the case of Election Commission of India vs Ashok Kumar and others (2000) 8 SCC 216; and Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others (1978) 1 SCC 405. He, thus, submitted that the provisions contained under Article 243 ZG of the Constitution of India would not be attracted and this Court should entertain the writ petition and pass appropriate orders. He also referred to the decision of Hon'ble Supreme Court in the case of Ahmednagar Zilla S. D. V. and P. Sangh Ltd. and another, Appellants v. State of Maharashtra and others, (AIR 2005 SC 1329) wherein the Hon'ble Supreme court had considered its earlier decision in the case of Shri Sant Satguru Janardan Swami (supra) relied upon by the learned Advocate General and has held that if the electoral roll has been prepared on the basis of amended bye-laws which bye-laws is under challenge, the Court can entertain the writ petition as validity of the bye-laws cannot be gone into by the Tribunal. He further submitted that the petitioner is not at all asking the State Election Commission to postpone the polling as scheduled. Referring to the Uttar Pradesh Municipalities (Election of Members, Corporators, Chairmen and Mayors) Rule, 2010 he submitted that the entire election process can be completed within 18-20 days as per Rule 19(1) of the said Rules. He further submitted that the reservation list as notified on 25th May, 2012 is in gross violation of the statutory provisions as contained in clause (f) of sub-section (5)(1) of section 9-A of the Act and the State be directed to re-draw the reservation list and the State Election Commission may suitably modify the date for nomination, withdrawal, etc without affecting the polling date which will be in furtherance of the free and fair election of the local bodies in the State of Uttar Pradesh. He further submitted that the provisions of section 4 of the U.P. Act No. 25 of 2006 which provided for repeal and saving is not at all relevant for deciding the issue raised herein. There is no question of validating any action taken under the Ordinance. The Act came into force on 12th July, 2006 and admittedly elections of local bodies were held sometimes in November, 2006 when clause (f) of section 9-A (5)(1) of the Act was very much there in the statute book. The provisions of clause (f) would apply to subsequent elections and, therefore it would be applicable to the ensuing elections. He further submitted that as the Sate has taken the decision to hold the current election to be the first election on the basis of the opinion given by the learned Advocate General, therefore the Court can go into its validity and the privilege as provided under section 126 of the Evidence Act, 1872 would not be attracted.
POINTS FOR DETERMINATION.
The following points arise for determination by this Court:
(1) Whether the present writ petition is maintainable or not?
(2) The effect of legal opinion given by the learned Advocate General of the State of Uttar Pradesh.
(3) Whether the Hon'ble Supreme Court is monitoring the matter relating to reservation of office of Chairperson in various Nagar Palika Parishads/Nagar Panchayats and if so, its effect?
(4) The effect of the order dated 16th April, 2012 passed by the Hon'ble Supreme Court on IA No.4 of 2012 filed by the State of Uttar Pradesh.
(5) Whether the action of the State Government is actuated by malice in law?
(6)Whether the dispute can be raised by way of an election petition or not?
(7)Whether the present local bodies elections can be held to be first election under the U.P. Act No.25 of 2006 or not?
DISCUSSION AND FINDINGS Point No.1 Article 243ZG of the Constitution of India bars the courts to interfere in electoral matters. It reads as follows:
"243ZG. 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 purported to be made under article 243ZA shall not be called in question in any court;
(b)no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State"
Clause (b) would not come into play in the present case as the municipal elections are yet to be held. However, under Clause (a) the Court is prohibited to consider the validity of any law relating to delimitation of constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243ZA of the Constitution of India. Article 243ZA gives the power of superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities to the State Election Commission. Clause (2) empowers the Legislature of a State to make provision with respect to all matters relating , or in connection with, elections to the Municipalities. Clause (4) of Article 243T of the Constitution of India empowers the State Legislature to make law to provide reservation for the offices of Chairpersons in the Municipalities in favour of Scheduled Castes, the Scheduled Tribes and women. Clause (6) of Article 243T empowers the Legislature of a State for making a provision for reservation for offices of Chairpersons in the Municipalities in favour of backward class of citizens. The reservation for the offices of the Chairpersons in the Municipalities in favour of the Scheduled Castes, Scheduled Tribes, backward class of citizens and women made by the State Government is referable to Article 243T of the Constitution of India. Thus, the notification dated 23.05.2012 has been issued by the State Government in exercise of the powers conferred under Section 9A (5) of the Act.
The Hon'ble Supreme Court in the case of Anugrah Narain Singh (supra) has held as follows:
"12.....The bar imposed by Article 243-ZG is twofold. Validity of laws relating to delimitation and allotment of seats made under Article 243_ZA cannot be questioned in any court. No election to a municipality can be questioned except by an election petition. Moreover, it is well settled by now that if the election is imminent or well under way, the court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the court and stall the elections...."
Even otherwise it has been the consistent view of the Hon'ble Supreme Court that once the election process has been set in motion, the courts should not entertain the writ petitions under Article 226 of the Constitution of India and pass orders which may have the effect in postponing the elections. In the case of N.P. Ponnuswami (supra) The Hon'ble Supreme Court has held as follows:
"(16) The conclusions which I 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 be 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."
In the case of Mohinder Singh Gill(supra) the Hon'ble Supreme Court has held as follows:
"92.....
(1)(a) Article 329 (b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result.
(b) Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate.
(2)(a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.
(b)Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz. Elections. Fairness does import an obligation to see that no wrong-doer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. Whether it has been complied with is left open for the Tribunal's adjudication.
(3)The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post-election stage and procedure as predicated in Article 329(b) and the 1951 Act. The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other thing necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law."
In the case of Election Commission of India(supra) the Hon'ble Supreme Court has held as follows:
"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:
(1)If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
(2)Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(3)Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
(4)Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.
(5)The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
In the case of Shri Sant Sadguru Janardan Swami(supra) the Hon'ble Supreme Curt has held that the preparation of electoral roll is an intermediate stage in the process of election of the Managing Committee of a specified Society and the writ petition challenging the order declaring on the ground of illegality in preparation of voters list would , therefore, be not maintainable.
In the case of Ahmednagar Zilla S.D.V. And P. Sangh Ltd.(supra) the Hon'ble Supreme Court has held that if the electoral rolls have been prepared on the basis of illegal amendment in the bye-laws then the writ petition would be maintainable.
In the case of Kishansingh Tomar(supra) the Hon'ble Supreme Court has held that the powers of the State Election Commission in respect of conduct of elections is no less than that of the Election Commission of India in their respective domains and are subject to the law made by the Parliament or by a State Legislature provided the same do not encroach upon the plenary powers of the said Election Commissions.
In the case of Lakshmi Charan Sen(supra), the Hon'ble Supreme Court has held that the High Court acted within its jurisdiction in entertaining the writ petition and in issuing rule nisi upon it, since the petition questioned the vires of laws of the election but was not justified in passing the interim orders and in confirming the said orders.
From the aforesaid decisions of the Hon'ble Supreme Court the following principles emerge:
(1) The validity of laws relating to delimitation and allotment of seats made under Article 243-ZG cannot be questioned in any Court . No election to a municipality can be questioned except by an election petition. The bar has specifically been imposed under Article 243ZG.
(2) If the election is imminent or well under way, the court should not intervene to stop the election process.
(3) The 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.
(4) All the irregularities which have occurred in conducting the election may be called in question before the Election Tribunal by means of an election petition and not be made subject of dispute before any Court while election is in progress.
(5) The powers of Election Commission are subject to limitation. Firstly, the commission shall act in conformity with and not in violation of the valid law made by the Parliament or by a State Legislature. Secondly, the Commission shall be responsible for the rule of law, act bona fide and be amenable to the norms of natural justice.
(6) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(7) The preparation of electoral rolls, if the statute so provides, can be treated as an intermediate stage in the process of election.
(8) If the electoral rolls are prepared under an illegal amendment in the bye-laws that can be subject matter of challenge in writ proceedings.
Applying the principles laid down in the aforesaid cases to the facts of the present case, we find that providing for reservation to various categories of persons for the offices of Chairpersons in Nagar Palika Parishad/Nagar Panchayats is covered under the provisions of Article 243-ZG read with Article 243-T of the Constitution of India and, therefore, as the State Election Commission has notified the election schedule on 25th May, 2012, the provisions contained in Article 243ZG are attracted and this Court would not have any jurisdiction to entertain the writ petition.
The submission of Sri Tripathi, learned Senior Counsel, that challenge to the notification dated 23rd May, 2012 providing for reservation for the offices of Chairpersons of Nagar Palika Parishads/Nagar Panchayats being violative of the provisions of clause (f) of sub-section (5) (1) of Section 9A of the Act is not to stop but to subserve the progress of the election and for facilitating the completion of election as also for holding free and fair elections cannot be accepted. It is, therefore, held that the writ petition is not maintainable.
Point No.2 We may mention here that the State has justified its stand on the basis of the legal opinion given by the learned Advocate General. We are not inclined to go into the correctness or otherwise of the opinion given by the learned Advocate General as in our considered opinion we should refrain ourselves from making any comment on it.
Point No.3 As stated in the counter affidavit we find that the State has preferred Special Leave Petition (C) No.34436 of 2011 against the judgment and order dated 5th December, 2011, passed by the Lucknow Bench of this Court in Misc. Bench No.11226 of 2011 wherein the Lucknow Bench of this Court had declared the provisions of Section 43D(4) of the Act, as inserted by U.P. Act No.23 of 2005, as ultra vires to the Constitution of India and directed the State Government to work round the clock and complete all the necessary formalities for holding election by 18.12.2011 and would issue notification on or before 19.12.2011. We may mention here that by Section 43-D(4) of the Act the State Government was empowered to appoint administrator to look after the affairs of the municipal council till such time a newly elected body is constituted. It has nothing today with the reservation. The Hon'ble Supreme Court has only extended the time for completing the reservation process and holding elections. In what manner the reservation is to be made the matter is not before the Hon'ble Supreme Court in the Special Leave Petition filed by the State of U.P. At least nothing has been brought on record before us to show that the Hon'ble Supreme is monitoring the matter relating to reservation for the offices of Chairpersons of various Nagar Palika Parishads/Nagar Panchayats in the State of U.P. That being the position, the decision relied by Sri Gupta in the case of Jaiswal Coal Co.Ltd.(supra) would not be applicable.
Point No.4 Before considering this issue we would like to reproduce the order dated 16th April, 2012 passed by the Hon'ble Supreme Court in IA No.4 of 2012, filed by the State of U.P.
"I.A. No.4 of 2012, has been filed on behalf of the State of U.P., praying for modification of the order dated 1st February, 2012, passed in S.L.P.(C) No.34436 of 2011, by extending the time for completion of the process of reservation of seats for the Municipal Elections in the State of Uttar Pradesh.
This prayer has been made on account of the reasons indicated in paragraph 10 of the application.
Having heard the learned Solicitor General and the other parties to the proceedings and in view of the opinion that has been set out in paragraph 10 of the application, we allow the application and grant time till 31st May, 2012 for completion of the process of reservation of seats for the Municipal Elections in the State of U.P."
Paragraph 10 of the application which has been mentioned in the said order of the Hon'ble Supreme Court is also reproduced below:
"10. That the Ld. Advocate General, U.P. in his opinion 07.04.2012 formulated the following question for consideration:-
"Whether the election of the Urban Local Bodies in the State of U.P. is the first election under the provisions of Section 9A of the U.P. Municipalities Act, 1916 (as amended by U.P. Act No.25 of 2006) or it is a 'subsequent election' (i.e. next to the previous election) under those provisions."
While considering the aforesaid question it was opined that election of 2006 cannot be inferred to be 'first election' under amended provision of the Act and the elections of 2006 are not covered under the provisions of Amending Act(U.P. Act No.25 of 2006). However, since the exercise to decide the controversy would lead to non completion of election process by 15.04.2012 as directed by this Hon'ble Court, it was opined that the entire situation may be placed before the Hon'ble Supreme Court and to seek further directions to extend the period for completion of the election process. The relevant extract of the opinion of Ld. Advocate General reads as under:-
"On merits, the contention that the present elections are in fact the first election according to the amended provisions of the Municipal Corporations and Municipal Council is not one which can be wholly excluded or brushed aside. The reason is that, as already referred to earlier, there are substantive and vita changes in the provisions of the Ordinance and the provisions of the Amendment Acts which replaced the ordinances. The elections of 2006 which were held according to the provisions of the Ordinance cannot be held to be the first election under the amended provisions. It is true that the amending Act provides that"notwithstanding such repeal, anything done or any action taken under the provisions of the acts referred to in Chapters I and II as amended by the Ordinances referred to in sub-Section (1) shall be deemed to have been done or taken under the corresponding provisions of the said Acts as amended by this Act." This fiction cannot be extended to such an extent that the elections which had not been held according to the provisions of the Amending Act may be treated to be elections under the Amending Act. There is no fiction to the effect that the election under the Ordinance would be treated to be first elections under the amended provisions and the next elections would be treated as subsequent elections. In my opinion, in absence of such fiction it is difficult to infer that the elections of 2006 were the first election under the amended provisions and the present elections, consequently, liable to be treated to be subsequent elections. Regard may also be had to the fact that the Amending Act were enforced with retrospective effect to operate from 12.07.2006, the day when the Ordinances were promulgated. This is another factor tending to show that the elections of 2006 were not liable to be covered under the provisions of the amending Act. However, this controversy cannot be finally decided on merits by the State Government in such a short time. Moreover, any such exercise to decide this controversy by the State Government would eventually lead to the non completion of the election process by 15th April, 2012. Therefore, as directed by Hon'ble Supreme Court, as it exists, there is no option for the State Government except not to decide this controversy and to proceed with the process of election as had already been started. In this view of the matter, if the State Government wants finally to take the view that the present election is not a subsequent election and is a first election, it is necessary to place this situation before the Hon'ble Supreme Court and to seek further direction from the Hon'ble Supreme Court to extend the period for the completion of the process of election".
From a reading of the order dated 16th April, 2012 passed by the Hon'ble Supreme Court we do not find that the Hon'ble Supreme Court had given any finding on the question as to whether the election of the local bodies held in 2006 was the first election and the ensuing election is the second election or not. It had simply extended time for completing the process of reservation till 31st May, 2012 as prayed for in IA No.4 of 2012 filed by the state of U.P.
In the case of Union of India vs. Chajju Ram(Dead) by LRs and others, (2003) 5 SCC 568, a Constitution Bench of the Hon'ble Supreme Court has held that a decision is an authority for what it decides and not what can logically be deduced therefrom and it is equally well settled that a little difference in facts or additional facts may lead to a different conclusion. In the case of State of Haryana vs. Ranbir Alias Rana, (2006) 5 SCC 167, the Hon'ble Supreme Court has taken the same view.
In the case of Dhodha House vs. S.K. Maingi, (2006) 9 SCC 41, the Hon'ble Supreme Court has held as follows:
"36. It is well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom.(See Bharat Forge Co.Ltd. v.Uttam Manohar Nakate, (2005)2 SCC 489, M.P. Gopalakrishnan Nair v. State of Kerala, (2005)11 SCC 45 and Haryana State Coop. Land Development Bank v. Neelam, (2005)5 SCC 91) In the case of Inderpreet Singh Kahlon and others vs. State of Punjab and others, (2006)11 SCC 356, the Hon'ble Supreme Court has held has follows:
"53. It is now well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is also well settled that a ratio of case must be understood having regard to the fact situation obtaining therein.(See P.S. Sathappan v. Andhra Bank Ltd., (2004)11 SCC 672, M.P. Gopalakrishnan Nair v. State of Kerala, (2005)11 SCC 45 and Haryana State Coop. Land Development Bank v. Neelam, (2005)5 SCC 91)"
In the case of Commissioner of Customs (Port), Chennai vs. Toyota Kirloskar Motor (P) Ltd., (2007) 5SCC 371 the Hon'ble Supreme Court has held as follows:-
"37.The observations made by this Court in Essar Gujarat Ltd. (Collector of Customs (Preventive) v. Essar Gujarat Ltd., (1997)9 SCC 738) in para 18 must be understood in the factual matrix involved therein. The ratio of a decision, as is well known, must be culled out from the facts involved in a given case. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. Even in Essar Gujarat Ltd.a clear distinction has been made between the charges required to be made for pre-importation and post-importation. All charges levied before the capital goods were imported were held to be considered for the purpose of computation of transaction value and ot the post-importation one. The said decision, therefore, in our opinion, is not an authority for the proposition that irrespective of nature of the contract, licence fee and charges paid for technical know-how, although the same would have nothing to do with the charges at the pre-importation stage, would have to be taken into consideration towards computation of transaction value in terms of Rule 9(1)(c) of the Rules."
In the case of Air India Cabin Crew Association and others vs. Union of India and others, (2012) 1 SCC 619, the Hon'ble Supreme Court has held as follows:
"As was observed by this Court in Inderpreet Singh Kahlon v. State of Punjab, (2006) 11 SCC 356, it is well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. Further, it is also well settled that the ratio of a case must be understood having regard to the fact situation obtaining therein. The position since the decisions rendered in Nergesh Meerza Case( Air India v. Nergesh Meerza, (1981) 4 SCC 335) and in Yeshaswinee Merchant case(Air India Cabin Crew Assn. v. Yeshaswinee Merchant, (2003) 6 SCC 277), underwent a change with the adoption of the revised promotion policy agreed to between the parties and which replaced all the earlier agreements. In our view, the Management of Air India was always entitled to alter its policies with regard to their workmen, subject to the consensus arrived at between the parties in supersession of all previous agreements."
Applying the principles laid down in the aforesaid cases to the facts of the present case we find that as already mentioned hereinbefore the Hon'ble Supreme Court had not at all decided as to whether the municipal elections held in the year 2006 would be treated as first election and the ensuing elections which are scheduled to be held in 2012 should be treated as subsequent election or first election. In fact, it had only extended the time for completing the process of reservation while passing the order dated 16th April, 2012. There is no adjudication by the Hon'ble Supreme Court on this issue. Therefore, the contention of the learned Advocate General that the order dated 16th April, 2012 passed by the Hon'ble Supreme Court has accepted the plea of the State that the ensuing election is the first election, is not correct.
Point No.5 The submissions advanced by Sri Tripathi, learned senior counsel, that the action of the State Government in not following the statutory provisions as contained in Clause (f) of sub-section (5)(1) of Section 9A of the Act is actuated with malice in law is not correct. The Hon'ble Supreme Court in the case of Ravi Yashwant Bhoir(supra) has held that the state is under an obligation to act fairly without ill will or malice in fact or in law and 'Legal malice' or 'malice in law' means something done without lawful excuse. We are of the considered opinion that in the present case as the State has acted upon the opinion given by the learned Advocate General no malice in law can be attributed to the State in its action.
Point No.6 While discussing the point regarding maintainability of the present writ petition, we have come to the conclusion that the proper remedy is to raise the dispute in an election petition after the elections are over. Section 19 of the Act makes provision for questioning municipal election by petition. It reads as under:-
"19. Power to question municipal election by petition.-(1) The election of any person as a member of a Municipality may be questioned by an election petition on the ground.-
(a) that such person committed during or in respect of the election proceedings a corrupt practice as defined in Section 28;
(b) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes, or any other reason was not duly elected by a majority of lawful votes;
(c) that such person was not qualified to be nominated as a candidate for election or that the nomination paper of the petitioner was improperly rejected.
(2) The election of any person as a member of a Municipality shall not be questioned.-
(a) on the ground that the name of any person qualified to vote has been omitted from, or the name of any person not qualified to vote has been inserted in the electoral roll or rolls;
(b) on the ground of any non-compliance with this Act or any rule, or of any mistake in the forms required thereby, or of any error, irregularity or informality on the part of the officer or officers charged with carrying out this Act or any rules, unless such non-compliance, mistake, error, irregularity or informality has materially affected the result of the election."
Even though under clause (a), (b) and (c) of sub-section (1) of Section 19 of the Act, the ground relating to illegal reservation of the office of Chairperson of Nagar Palika Parishad/Nagar Panchayat cannot be raised to question the election of such a person but in our considered opinion under clause (b) of subsection (2) of the Section 19 of the Act, this ground that the reservation for the office of Chairperson of the concerned Nagar Palika Parishad/Nagar Panchayat was not made in accordance with clause (f) of sub-section (5)(1) of Section 9A of the Act can be raised. In this connection we may refer to paragraph 8 of the decision of the Hon'ble Supreme Court in the case of Hari Shanker Jain vs. Sonia Gandhi, (2001) 8 SCC 233, which is reproduced below:
"8. It is clear from a conspectus of the abovesaid provisions that jurisdiction to try an election petition has been conferred on the High Court. The grounds for declaring an election to be void must conform to the requirement of Section 100 and the operative part of the order of the High Court must conform to the requirement of Sections 98 and 99 of RPA, 1951. The vires of any law may be put in issue by either party to an election petition before the High Court and the High Court can adjudicate upon such an issue if it becomes necessary to do so for the purpose of declaring an election to be void under Section 100 and for the purpose of making an order in conformity with Sections 98 and 99 of RPA, 1951. The only restriction on the power of the High Court, as spelled out by clause (a) of Article 329 of the Constitution, is that the validity of any law relating to the delimitation of constituency or allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, cannot be called in question and hence cannot be so adjudged. A Judge of the High Court can, therefore, while hearing an election petition, adjudicate upon the validity of any statutory provision subject to two limitations: (i) that it must be necessary to go into that question for the purpose of trying an election petition on any one or more of the grounds enumerated in Section 100 and for the purpose of granting any one or more of the reliefs under Sections 98 and 99 of the Act, and (ii) a specific case for going into the validity or vires of any law is made out on the pleadings raised in the election petition."
Point No.7 Before taking up this point,we may mention here that even though we have held that the writ petition is not maintainable and the proper remedy is for the filing of an election petition, but our conscience has been shaken in the manner the State Government has proceeded to declare the election. The State Government had published the tentative reservation list on 25th April, 2012. The objections were to be filed by 3rd May, 2012, which were decided on 23rd May, 2012 and the notification finalising the reservation for the offices of Chairpersons in Nagar Palika Parishads/Nagar Panchayats for various categories have been issued on 23rd May, 2012 itself. The State Election Commission had issued the election schedule on 25th May, 2012. The objectors have not been given any time to ventilate their grievances. The State has decided to act and proceed on the opinion given by the learned Advocate General that the current election is the first election under the U.P.Act No.25 of 2006. Sri Tripathi has pointed out that in all there are 630 local bodies comprising of 13 Municipal Corporations, 194 Nagar Palika Parishads and 423 Nagar Panchayats. There are about 75 districts in the State of U.P. meaning thereby that there shall be about 75 Election Tribunals and even in each of the Tribunal an election petition on this issue as to whether reservation has been made in accordance with the provisions of clause (f) of sub-section (5)(1) of Section 9A of the Act or not, is filed there can be contradictory views expressed by the Election Tribunals, which would result in a chaos. We, therefore, are proceeding to decide this issue on merits.
As already mentioned hereinbefore prior to 2006 reservation for the offices of Chairpersons in Nagar Palika Parishads/Nagar Panchayats was to be done by the State Government. The State Government had framed U.P. Municipal Corporation (Reservation and Allotment of Seats in offices) Rules, 1994. Section 9A(5) read with Rule 6 of the Rules (as it stood prior to the promulgation of U.P. Ordinance No.3 of 2006 and replaced by the Act No.25 of 2006) was held to be ultra vires and declared illegal and invalid in the case of Heera Lal Umar (supra). The State of U.P. promulgated Ordinance No.3 of 2006 amending the statutory provisions under Section 9A(5) of the Act. The Ordinance was enforced on 12th July, 2006. The Ordinance contained a detailed provision regarding reservation for various categories. In respect of women of different categories it was specifically provided that the seats reserved for women for a particular category in the previous election shall not be repeated in the subsequent election. By U.P. Act No.25 of 2006 which came into force on 12th July, 2006 i.e. the date on which U.P. Ordinance No.3 was promulgated, instead of making separate provision for ensuring that reservation for seats for women is not repeated in the subsequent election, a clause (f) was inserted in sub-section (5)(1) of Section 9A of the Act which not only prohibited repetition of reservation of seats for women in the local bodies but also for the Scheduled Castes, the Scheduled Tribes and Backward class category also. As the U.P. Act 25 of 2006 came into force on 12th July, 2006, clause (f) of sub-section 5(1) of Section 9A shall also be deemed to have come into force on 12th July, 2006. Therefore, for all practical purposes it will be treated to be in the statute book from that date and full effect has to be given. It is not disputed that the election to the local bodies in the state of U.P. was held in November, 2006 after the aforesaid Act came into force. Clause (f) does not talk of reservation in respect of any election prior to 2006. It only says 'previous election'. The elections for the offices of Chairpersons in Nagar Palika Parishad/Nagar Panchayat in the State of U.P. are to be held in the year 2012. The provisions of clause (f) would come into play and if in the previous election i.e. election held in 2006 a particular office of Chairperson has been reserved for any of the categories i.e the Scheduled Castes, the Scheduled Tribes, backward class citizens or women then it shall not be repeated in this election. This is the plain meaning of clause (f). The submission that legal fiction cannot be extended beyond the object for which it has been created and reference to Section 4 of the U.P. Act No.25 of 2006, which deals with the Repeal and Savings would not be applicable in the present case. The decision relied upon by Sri Gupta in the cases of Bengal Immunity Co.Ltd.(supra) and Amar Chand N.Shroff(supra) would not be applicable in the present case.
We may mention here that clause (f) of sub-section (5)(1) of section 9-A of the Act prohibits allotment of office of the chair person belonging to the same category, i.e. Scheduled Castes, Scheduled Tribes, Backward classes or women for being allotted in the subsequent elections. For ready reference clause (f) is reproduced below:
"(f) the offices allotted in any previous election to the Scheduled Castes, Scheduled Tribes, Backward classes or women shall not be allotted in the subsequent election respectively to the Scheduled Castes, the Scheduled Tribes, the backward classes or the women and the offices in such subsequent election shall be allotted serially from the next to the last office allotted to the women in the previous election in the order referred to in sub clause 9(d) in cyclic order."
It is well settled that if an act is required to be done in a particular manner then that act has to be performed in that manner alone and not in any other manner. The Apex Court in the case of Dhanajaya Reddy vs. State of Karnataka (2001) 4 SCC 9, Commissioner of Income tax Mumbai vs. Anjum M.H.Gaswala and others (2002) 1 SCC 633, Mehsana District Central Cooperative Bank Ltd. and others vs. State of Rujrat and others ( 2004) 2 SCC 463 and Ram Phal Kundu vs. Kamal Sharma (2004) 2 SCC 759 has held that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. The Apex Court in the case of Ram Phal Kundu (supra) has held as follows:
"The rule laid down in Taylor vs. Taylor that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, was adopted for the first time in India by the Judicial Committee of the Privy Council in Nazir Ahmad vs. King Emperor. The question for consideration was whether the oral evidence of a Magistrate regarding the confession made by an accused, which had not been recorded in accordance with the statutory provisions viz. Section 164 Cr.P.C. would be admissible. The First Class Magistrate made rough notes of the confessional statements of the accused which he made on the spot and thereafter he prepared a memo from the rough notes which was put in evidence. The Magistrate also gave oral evidence of the confession made to him by the accused. The procedure of recording confession in accordance with Section 164 Cr.P.C. had not been followed. It was held that Section 164 Cr.P.C. having made specific provision for recording of the confession, oral evidence of the Magistrate and the memorandum made by him could not be taken into consideration and had to be rejected. In State of U.P. vs. Singhara Singh a Second Class Magistrate not specifically empowered, had recorded confessional statement of the accused under Section 164 Cr.P.C. The said confession being impossible, the prosecution sought to prove the same by the oral evidence of the Magistrate, who deposed about the statement given by the accused. Relying upon the rule laid down in Taylor vs. Taylor and Nazir Ahmad vs King Emperor it was held that Section 164 Cr.P.C. which conferred on a Magistrate the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him. This principle has been approved by this Court in a series of decisions and the latest being by a Constitution Bench CIT vs. Anjum M.H.Ghaswala (SCC para 27)"
The same view has been taken by the Hon'ble Supreme Court in the case of Kunwar Pal Singh vs. State of U.P. and others (2007) 5 SCC 85; Gujrat Urja Vikas Nigam Ltd. vs. Essar Power Ltd. (2008) 4 SCC 755 and Ram Deen Maurya vs. State of U.P. (2009) 6 SCC 735. The reservation provided in the notification dated 23rd May, 2012 is on the premise that the present election is the first election to be held after the U.P. Act No. 25 of 2006 has come into force which is not the correct view and reservation is to be made in accordance with clause (f) of sub-section (5)(1) of section 9-A of the Act. We are of the view that the reservation as notified vide notification dated 23rd May, 2012 therefore, requires to be re-examined.
CONCLUSION In view of the foregoing discussions, we are of the considered opinion that the present writ petition is not maintainable and is, therefore, dismissed. However, we leave it open to the State Government and the State Election Commission to consider the desirability of taking appropriate action so that the polling to various local bodies as already scheduled be not affected.
Dated:01.06.2012 mt/samz.