- (1.) The general elections for the Municipal Committee of Patiala were notified to be held with effect from 12-3-1951. On the 13th, when elections for ward No. 3 & No. 11 were in progress the Dy. Comr., Patiala issued an order Under Section 144, Code of Criminal Procedure, calling upon the public in general to abstain from holding public meetings or public assemblies of five or more persons etc on any road, etc. within the limits of the area of the Municipal Committee for three days. The exact words of the order in so far as it relates to this case shall be reproduced later. After issuing the said order the Dy. Comr. stopped the polling in ward Nos. 3 & 11 & then the Govt. ordered an inquiry into the conduct of the elections. This has given rise to a petn. Under Section 226 by Kartar Singh & Sampuran Singh for the issue of writs of mandamus & prohibition against the State, Shri Muna Lal, Election Officer of Municipalities, the Dy. Comr. Patiala, S. Dalip Singh Presiding Officer Polling Station, Ward No. 3 & S. Ram Singh Presiding Officer Polling Station, Ward No. 11.
(2.) The petnrs. contended that the elections once commenced could not be stopped by the Dy. Comr. & that his order was without jurisdiction & ultra vires. They further contended that the Govt. had no power to order the inquiry & their action was likely to prejudice petnrs. in the election. The learned Advocate-General who appeared on behalf of all the resps. admitted that polling in ward Nos. 3 & 11 was stopped by the Dy. Comr. before the election was complete. He also admitted that Govt. appointed an officer to hold an inquiry into the elections of the wards. As regards the first it was explained in the written statement of the Advocate-General that it was not possible to go on with the elections because of the order promulgated by the Dist. Mag. Under Section 144 & the reason why the said order had been made was that there was a good deal of rowdyism & communal tension in the city of Patiala & Govt. after considering the whole situation had come to the conclusion that with a view to maintaining peace it was necessary to ban the assembly of five or more than five persons in all public places. The learned Advocate-General maintained that if the Govt. had not taken the precaution of having the said order Under Section 144 made by the Dist. Mag. there would have been communal rioting on a considerable scale & with the enforcement of an order Under Section 144, Code of Criminal Procedure it was not possible to continue the polling. As regards the alleged failure of the Govt. to make arrangements for fresh elections the position of the learned Advocate-General may be given in his own words, contained in para 3 of his written statement: No steps have been taken to continue the elections as a fresh polling programme has to be worked out. This cannot be done without Govt. being sure that communal relations have improved to the necessary extent to enable peaceful polling Govt. have already ordered an inquiry under Rule 67 of the Municipal Election Rules, & only after Govt. have received the report of the Enquiry Officer & passed orders will Govt. be in a position to proceed with the elections. As regards the Govt.'s power to hold the inquiry the position of the learned Advocate-General was that Rule 67 of the Municipal Election Rules gave the Govt. the right to order such an inquiry.
(3.) The first question that falls for determination is whether the Dy. Comr. was competent to stop the elections. Before I proceed to discuss it I wish to observe that according to the statement that the learned Advcoate-General made before us, the order of the Dy. Comr. was verbal & we do not know what words he used. I should have thought that taking into consideration the importance of the question it was the duty of the reaps. to produce some evidence about it or at least to make available to us an affidavit or a written statement by Shri R.S. Palta, the then Dy. Comr. reproducing the words of the order, so far as it was possible for him to do so, & explaining the circumstances under which it was made, but they failed in this. Even the presiding Officers of the Polling Stations to whom the orders of the Dy. Comr. must have been communicated have not chosen to throw any light on it. This being the case we do not know under what provision of law or under what rule the Dy. Comr. while stopping the elections purported to act. The learned Advocate-General conceded be fore us that neither any Section of the Municipal Act nor any of the Bales framed thereunder empowers the Dy. Comr., or as a matter of fact any authority, including the Govt. to stop or suspend the elections for an indefinite period. Rule 37 of the Municipal Election Rules of 2006 gives the Presiding Officer the power to stop polling for certain time but the perusal of the rule would go to show that that can only be for a short time on a particular day. This is what Clause (1) of the rule says: The Presiding Officer shall on each day on which polling is to take place close the polling station at the hour appointed...provided that if for any reason it was not possible to open the polling station at the hour appointed...or it by reason of disorder at the polling station or for any other reason the Presiding officer deems it necessary to stop the polling for a certain time, the Presiding Officer shall keep the polling station open for a further period equal to the period that elapsed between the hours appointed for the opening of the polling station, & the hours at which it was actually opened or the time during which polling was stopped, as the case may be.;