RAGHUVANS PRASAD Vs. MAHENDRA SINGH
LAWS(MPH)-1967-9-12
HIGH COURT OF MADHYA PRADESH
Decided on September 18,1967

RAGHUVANS PRASAD Appellant
VERSUS
MAHENDRA SINGH Respondents

JUDGEMENT

DIXIT C.J. - (1.) - The petitioner in this case, who is a Councillor of Rewa Municipal Council, challenges the legality of the election of the non-applicant No. 1 Shri Mahendra Singh as the President and of the non-applicants Nos. 2 and 3 as the Vice-Presidents of the Council. He seeks a declaration that the election is invalid and prays that it be quashed by the issue of a writ of certiorari and the respondents be restrained from giving effect to the elections.
(2.) BEFORE stating the facts and dealing with the contentions advanced on behalf of the parties it is necessary to refer to the material provisions of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the Act). Sub-sections (2), (3) and (4) of section 43 contain provisions for the election of the President and the Vice-Presidents. They run as follows:- "43 (2) (a) After every general election the Council shall elect the President and the Vice-Presidents at its first meeting held under sub-section (2) of section 55 and the President and the Vice-Presidents so elected shall hold office for a period of two years from the date on which they enter upon their offices. (b) On the expiry of the term of the office of the President and the Vice-President elected under clause (a), the Council shall, at a meeting convened for the purpose within one month thereof, elect new President and Vice-Presidents who shall hold office for the unexpired term of the Council. (c) The provisions of sub-sections (2) and (3) of section 55 shall, so far as may be, apply to the meeting under clause (b), as they apply to the first meeting of a Council; Provided that the President and the Vice-Presidents shall continue in office until their successors enter upon their respective offices in accordance with the provisions of this Act. (3) If the Council fails to elect a President or Vice-President in accordance with this section, the State Government may, by order, direct the Council to elect the President or Vice-Presidents within the period specified therein and on failure of the Council to do so appoint any person eligible under sub-section (1) to fill the vacancy. (4) The State Government may make rules for regulating the mode and time of election of the President and the Vice-Presidents." Section 45 lays down that every election of the President or Vice-President shall be notified in the Gazette and persons elected shall enter upon their respective offices from the date of the notification. The provisions of sub-sections (2) and (3) of section 55 referred to in clause (c) of sub-section (2) of section 43 are as follows:- "55 (2). The Collector, in the case of Class I and Class II Municipalities and the Sub-Divisional Officer, in the case of Class III and Class IV Municipalities shall call the first meeting of the Council soon after the election and selection of Councillors, to elect the President and Vice-Presidents. (3) The first meeting of the Council called under sub-section (2), shall be presided over by the Collector or the Sub-Divisional Officer, as the case may be, for the purpose of conducting the election of the President and the Vice-Presidents and all provisions contained in this Chapter shall, regarding meetings of the Council as far as may be, apply in respect of the said meeting: ***** ***** ***** Section 56, which is concerned with the convening of meetings, is in the following terms:- "56. (1) A meeting of the Council shall be either ordinary or special. (2) The date of every meeting, except the meeting referred to in section 47 and in sub-section (2) of section 55, shall be fixed by the President, or in the event of his being incapable of acting, by the Vice-President, and in the like event in bis case, by the Chief Municipal Officer. (3) Notice of every meeting specifying the time and place thereof and the business to be transacted thereat shall be despatched to every Councillor and exhibited at the Municipal Officer seven clear days before an ordinary meeting and three clear days before a special meeting. (4) No business other than that specified in the notice relating thereto shall be transacted at a meeting." A special meeting is one which is convened by the President or the Vice-President in accordance with section 57. The State Government has also framed rules under section 43 (4) intituled the Madhya Pradesh Municipalities (President and Vice-Presidents) Election Rules, 1962. A reference to the relevant rules will be made later. The election under challenge was held on the expiry of the term of the office of the persons elected in 1965 as the President and Vice-Presidents of the Council. These elections were notified in the Gazette dated 5th March 1965 in accordance with section 45. On 30th March 1967 the Collector directed the issue of a notice convening a meeting of the Council on 8th April 1967 for the election of the President and two Vice-Presidents. According to the applicant, the notice of the meeting was despatched on 31st March 1967 and served on him on 2nd April 1967. That notice specified the time and place for the receipt of nomination papers, the date for scrutiny of nomination papers and the date of withdrawal of candidature. The nomination papers were invited on 7th April 1967 between the hours 11 in the forenoon and 4 in the afternoon; the scrutiny of nominations was fixed for 7th April 1967 at 4 p. m. At the election held on 8th April 1967 the respondent No. 10 Shri Balbadhra Prasad also voted as a Councillor. The respondent No. 1 Shri Mahendra Singh and the respondent No. 5 Shri Madhusudan Prasad, who contested for the office of the President, each secured 15 votes. As there was equality of votes, the authority presiding at the meeting decided by lot the result of the election for the office of the President. The lot turned in favour of the respondent No. 1 who was accordingly declared as elected. Shri Tankha, learned counsel appearing for the petitioner, assailed the validity of the election first on the ground that the two years' term of the office of the persons elected as President and Vice-Presidents in 1965 expired on 4th March 1967 as their elections were notified in the Gazette under section 45 on 5th March 1965; and that, as provided by section 43 (2) (b), a meeting for the election of the new President and Vice-Presidents should have been convened within one month of 4th March 1967; this was not done. It was said that the meeting for the election of the President and Vice-Presidents, according to the dates specified in the notice issued by the Collector, commenced on 7th April 1967, the date fixed for the receipt of the nomination papers; that thus the meeting convened for the election of the aforesaid office-bearers was beyond the time prescribed by section 43 (2) (b) and was, therefore, illegal. Learned counsel proceeded to say that the time-limit fixed by section 43 (2) (b) for convening of a meeting for the election of the President and the Vice-Presidents was mandatory in character and the respondents Nos. 1, 2 and 3, who had been elected to the three offices at an invalid meeting, could not in any sense be regarded as elected or appointed pursuant to the provisions contained in subsection (3) of section 43.
(3.) IT is no doubt true that the two years' term of office of persons elected as President and Vice-Presidents in 1965 expired on 4th March 1967 as their elections were notified under section 45 in the Gazette dated 5th March 1965. IT cannot also be disputed that under section 43 (2) (b) a meeting for the purpose of electing new President and Vice-Presidents should have been held within one month of the expiry of the term of the outgoing President and Vice-Presidents. The meeting which was convened by the Collector was plainly not convened within one month of 4th March 1967. But, for that reason, the election of the respondents Nos. 1, 2 and 3 at the meeting convened cannot be held to be invalid. Section 43 (2) (b) no doubt imposes a duty on the Municipal Council to elect new President and Vice-Presidents at a meeting convened for the purpose within one month of the expiry of the term of the outgoing President and Vice-Presidents. For enabling the Council to fulfil this duty, a meeting must be convened within the prescribed time. Now, the power to call a meeting for the purpose of electing the President and Vice-Presidents has not been given to the Municipal Council; but it has been given to the Collector in the case of Class I and Class II Municipalities and to the Sub-Divisional Officer in the case of Class III and Class IV Municipalities as is clear from section 43 (2) (c) read with section 55 (2). If the Collector fails to call a meeting within the time-limit fixed by section 43 (2) (b), then the Council is not in a position to discharge the obligation imposed on it by section 43 (2) (b) of electing new President and Vice-Presidents. That obligation has been imposed on the condition that a meeting for the purpose of electing new President and Vice-Presidents is called within the prescribed time. Therefore, even if the time-limit condition is regarded as imperative, its non-compliance can be excused when the authority competent to convene a meeting for the purpose of electing new President and Vice-Presidents does not convene the meeting within the prescribed time. IT is well settled that if a statute imposes a duty on a person or a body to be carried out when certain formalities or requirements are fulfilled and if the performance of those formalities or requirements is rendered impossible by circumstances over which the person or body on whom the duty has been imposed had no control, then the non-compliance with the formalities or requirements can be excused. This principle has been stated in Maxwell on Interpretation of Statutes, 11th Edition, at pages 372 and 373 thus:- "A section may be imperative as regards the voluntary action of parties, but not so where such events happen that its provision cannot be attended to. ** * * * * * * Enactments which impose duties on conditions are, when these are not conditions precedent to the exercise of a jurisdiction, subject to the maxim that lex non cogit ad impossibilia aut inutilia. They are understood as dispensing with the performance of what is prescribed when performance of it is idle or impossible." So also in Craies on Statute Law, 6th Edition, it has been stated at page 268:- "Under certain circumstances compliance with the provisions of statutes which prescribe how something is to be done will be excused. Thus, in accordance with the maxim of law, Lex non cogit ad impossibilia, if it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control,......". On the application of these principles, it must be held that when, in the present case, the Collector convened a meeting beyond the time prescribed by section 43 (2) (b), then the election by the Council of the President or Vice- Presidents at such a meeting is not rendered invalid. In those circumstances, the time-limit condition prescribed by section 43 (2) (b) cannot be considered as being indispensable. It must be noted that sub-section (3) of section 43 does not come into play if the competent authority fails to convene a meeting for the purpose of electing new President and Vice-Presidents within the time prescribed by section 43 (2) (b). Under sub-section (3) it is only when the Council fails to elect a President or Vice-President in accordance with section 43 (2) (b) that the State Government can direct the Council to elect the President or Vice-Presidents within the time specified therein. If the Council again fails to elect the office-bearers, then the Government has the power to appoint any person eligible to fill the vacancy in the office of the President and the Vice-Presidents. When no meeting is called by the competent authority within the time as laid down by section 43 (2) (b), then it cannot be said that there has been a failure on the part of the Council to elect a President or Vice-President. The failure of the Council spoken of in sub-section (3) is the failure which occurs at a meeting called by the competent authority, no matter whether the meeting is convened within the time-limit fixed by section 43 (2) (b) or beyond it. Subsection (3) of section 43 cannot, therefore, be resorted to for supporting the validity of the election held at the meeting convened in the present case by the Collector. Its validity rests on the position that it is not within the control of the Municipal Council to convene a meeting for the purpose of electing new President or Vice-Presidents; that being so, if a meeting is convened by the competent authority beyond the prescribed time and the Council elects new President and Vice-Presidents at such a meeting, then the non-compliance of the time-limit for the holding of the meeting can be said to have been dispensed with.;


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