Hori Ram vs Municipal Board and Others

C.M. Lodha, J.—This is a writ application under Article 226 of the Constitution of India by the petitioner Hariram, who was a voter in the election for the Municipal Board Sadri, which took place on 15-9-1974. Respondent Nos. 2 to 14 were elected as members of the Municipal Board from wards No. 1 to 13, respectively and respondents No. 17 and 18 are co-opted members The election and the co option of these respondents have been called into question by this writ petition on the ground that certain area marked as ''PQRSTUV'' in the plan Exhibit-2 (attached to the petition), which fall within the delimited boundaries of the Municipal Board, Sadri as specified in the notification Exhibit 1 dated January 21, 1959 (at page 20 of the paper Book) was wrongly excluded at the time of the constitution of the wards, with the result that the persons Residing in this area were deprived of their right of vote and further that certain areas known as Jatoan-Ka-Dorna, Parasramji Ki Bagehi, Bhilon Ka Jhoompa and Nayasar Abadi, which fall outside the limits of the Municipal Board bad been wrongly included while constituting the wards.

It is urged by the learned Counsel for the petitioner that on account of exclusion of the area marked ''PQRSTUV'' election of the entire Municipality is vitiated. In support of his contention he has relied upon Shiam Sunder and Another Vs. The State of Punjab and Others, Qurabali and Others Vs. Government of Rajasthan and Others, and Jaiwant Rao and Ors. v. The State of Rajasthan and Ors. ILR (1960) Raj. 1703.

On the other hand, Mr. Mridul and Mr. Kalla learned Counsel for the respondents have argued that it is not at all established that any area lying within the delimited boundaries of the Municipality have been excluded, and/or any area lying outside the limits has been included, and at any rate the dispute being one of fact cannot be properly decided in writ jurisdiction It has also been argued that the petitioner is guilty of laches and is consequently estopped by his act, conduct and acquiescence from challenging validity of the election.

The questions whether any area has been improperly excluded and/or included and whether an appreciate portion of the inhabitants within the delimited area of the Municipality have been deprived of their right to vote are no doubt question of fact. But this Court cannot be deprived of its jurisdiction to entertain and decide the petition on merits merely because questions of fact are involved in the case. In Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot and Others, it was observed that:

The High Court is not deprived of its jurisdiction to entertain a petition under Articles 226 merely because in considering the petitioner''s right of relief, questions of fact may fall to be determined. In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on second judicial principles When the petition raises complex questions of fact; which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition See Smt. Gunwant Kaur and Others Vs. Municipal Committee, Bhatinda and Others, If however, on consideration of the nature of the controversy, the High Court decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect.

In the present case it is not the contention of either party that for the determination of the disputed question of fact, any oral evidence is required to be produced The determination of the question of wrongful exclusion or inclusion of area is dependent by and large on the interpretation of the wording of the notification fixing the limits. There are no complex questions of fact in the case. I am, therefore, unable to accept the contention raised on behalf of the respondent that the Court should refuse to entertain the petition on account of there being a disputed question of fact arising in the case.

It is the admitted case of the parties that the Municipal limits of Sadri Municipality were fixed by the Rajasthan State in its notification Exhibit 1 dated 21st January, 1959 and the portion ''PQRSTUV'' was not included in any of the 13 ward constituted vide notification Exhibit 3 published in Rajas-than Rajpatra dated 20th June, 1974. This area for the sake of convenience will be hereinafter referred to as "the alleged excluded area." The petitioner''s contention is that there are 14 wells in this area which have been marked as ''A'' to ''N'' in the Plan. It is further alleged that this area was included in ward No. 9 in the election held in the year 1970 and the persons residing in this area had cast their votes in that election. The contention of the learned eoun3el for the petitioner is that on a bare perusal of Exhibit-1 and Exhibit-2 it will be clear that this area falls within the delimited boundary or the Muni cipality.

The northern boundary of the area declared to be Sadri Municipality is described in Exhibit-1 as follows:

mRrj % tehu tks u;s lj vkcknh es feykbZ xbZ mlds mRrjh dksus ls ckjyh lknM+h o ldM+h unh dk mRrjh fdukjk gksrs gq, etkbZ unh es feyus ds LFkku rd A

River Sunkri as shown in the plan Exhibit-2 is running in a zig zag manner. If we take into consideration the northern bank of the river towards the north of Barli Sadri and join it with the point where there is the meeting point of the river Sunkri and the river Magai, then the alleged excluded area would fall within the delimited boundaries. But Mr. Mridul''s contention is that northern bank of the river is the bank towards the south of the alleged excluded area which has been shown by the figures ''PQRS" and thus the alleged excluded area does not fall within the delimited boundaries. He has also argued that no authencity can be attached to the map exhibit-2 as it is not known as to who prepared it and there is nothing on the record to lend assurance as to the correctness of this map. He has submitted that the mere fact that this portion was included in the election held in 1970 does not unmistakably lead to the conclusion that the alleged excluded area falls within the delimited boundaries of the Municipality.

I will first take up the case of wrongful exclusion, The map exhibit-2 is a certified copy of the original map contained in the file of the Municipality of Sadri which has supplied the copy Exhibit 2 Besides that, it tallies more or less with the maps produced by the respondents. There is nothing to show that a wrong plan was inserted by somebody in the Municipal record with an ulterior motive Besides that the State of Rajasthan has admitted the correctness of this map. I am, therefore, not prepared to exclude the map Exhibit-2 out of consideration and would prefer to base my findings on it.

I may now turn to Exhibit-1 wherein the boundaries are described. I have already reproduced the description of the northern boundary as mentioned in Exhibit-1. Barli Sadri is mentioned therein separately and then it is mentioned that the northern boundary will be the northern bank of the Sunkri river upon the point where the Sunkri river meets the Magai river. It appears to me that since Barli Sadri lies towards the north of that portion of the Sunkri river which joins the Magai river, it became necessary to make specific mention of Barli Sadri. If by northern bank of the river was meant that bank which lies towards north of Barli Sadri, it would not have been necessary to mention separately, Barli Sadri as in that case Barli Sadri would have been automatically included in that boundary. The northern portion of the Sunkri river joining the Magai river is towards the south of Barli Sadri Thus it appears to me that the northern boundary of the Municipality was fixed only upon the northern bank of that portion of the river Sunkri which lies to the south of Barli Sadri and since Barli Sadri was intended to be included in the delimited area, specification was made of the same. In this view of the matter, I am inclined to accept the contention of Mr. Mridul that by northern bank of the river Sunkri was not meant the horse shoe tip of the portion of the river Sunkri lying towards the north of Barli Sadri.

Apart from that, if two interpretations ate possible and the northern boundary of the Municipality as described in the notification Exhibit 1 can be interpreted in two ways the one as submitted by Mr. Mridul and the other as submitted by Mr. Hastimal, then unless there are very compelling reasons, the Court in its extraordinary jurisdiction would not be inclined to differ from the interpretation given by the State Government. It is true that the State in its reply has admitted that out of 14 wells situated in the alleged excluded area, 7 wells Khojina, Thunara, Randawas, Karniwala, Ramjiwala, Veniwala, Jabuwala and Sitalmaji ki Baori were included in Ward No. 9 while publishing the constitution of wards in the Government Notification dated 13th March, 1968 for election of 1970 But their case is that these seven wells were wrongly included in ward No. 9 and to a certain extent ward No. 9 then constituted was not in consonance with the Notification fixing the boundaries. In view of my finding that the alleged excluded area does not fall within the municipal limit, it must be held that a part of this area was wrongly included in Ward No. 9 in the election held in 1970 It is well established that there cannot be estoppel in such matters. In this view of the matter, it would be unnecessary to examine the question whether exclusion of a portion of the area within the delimited boundaries of the Municipality would vitiate the whole election or only one or more Wards contiguous to that area.

This brings me to the consideration of another contention that certain area referred to above has been wrongly included even though it did tint fall within the limits of the Municipality.

It is submitted that the area shown as Jaton-ka Dorna and Parasramji Ki Bagechi have been wrongly included in Ward No. 10. Similarly the locality known as Bhilon Ki Dhani is alleged to have been wrongly included in Ward No. 11. So also it is submitted that the locality known as Nayesar Abadi has been erroneously included in Ward No. 9. The convention of the counsel for the petitioners is that the said four localities fall outside the delimited Boundaries of Sadri Municipality as mentioned in the notification Exhibit-1 It is also the contention of the petitioner that the locality known as Parasramji Ki Bagechi and Jaton ka Dorna constituted the major portion of Ward No. 10, inasmuch as they contained 90% of the voters of the whole Ward. As regards Bhilon Ki Dhani, it is submitted that it has 88 voters whose names ate mentioned in the voters list of Ward No. 11 at Nos. 33 to 121 and the total number of votes in this Ward is 593. It is thus contended that the entire delimitation of the Wards and the entire elections have been affected because of wrongful inclusion of the aforesaid localities in Wards Nos. 9, 10 and 11. In the alternative it is pleaded that in case the Court comes to the conclusion that the entire election has not been affected, the election of respondents Nos. 10, 11 and 12 who have been elected from Wards Nos. 9, 10, and 11 respectively, may be set aside.

The State has generally denied this allegation and has further pleaded that assuming for argument''s sake that some area which ought not to have been included has been include d in some Ward, of the Municipality, then the election of that ward alone, should be set aside. As regards Wards No. 9 and 11, it has been urged that the area alleged to have been wrongly included is so small that it has not materially affected the election. Similar is the contention raised on behalf of the elected members, who have further pleaded that Nayasar Abadi i- not a populated Abadi at all and, therefore, it does rot make any difference if it has been included in any Ward. As regards Bhilon Ki Dhani alleged to have been wrongly included in Ward No. 11, it has been pleaded and argued on behalf of the elected members that the total number of voters in this area is not more than 47 as per the elector roll & consequently if 47 voters have wrongly cast in a ward having 593 voters, then it cannot be said that wrongfully inclusion of the area has materially affected the constitution of the ward.

In Jaiwant Rao''s case ILR 10 (1960) Raj. 1703 it was held that wrong inclusion of certain areas in the Municipality did not materially affect the delimitation of Wards on the whole and that under the circumstances the wrong inclusion had a bearing on the election of certain Wards only to which the areas had been supper added and election from those Wards could be considered to be illegal for that reason.

The eastern boundary of the Sadri Municipality has been described as follows in the Not fication Exhibit:

iwoZZ %& Jh pUnizHkw ds eafUnj gkbZLdwy ls jkbZdks dh k.kh o dfczLrku o u;Slj vkcknh es tehu feykbZ xbZ mlds mRrjh dkSu rd A

I have marked these places as E, E1, E2 and E3 in the map Exhibit-2. On setting the eastern boundary described in Exhibit 2, I find that the areas known as Jaton Ka Oorna and Parasramji Ki Bagechi deary fall outside the limits It is further clear from the allegation made by the petitioner is para No. 8. A of the petition that these areas contain more than 90% voters in Ward No. 10. The allegation has not been refuted by the non-petitioners I have, therefore, come to the conclusion that by wrongful inclusion of the aforesaid two areas, the delimitation of Ward No. 10 has been materially affected and the election of the candidate elected from this Ward is liable to the set aside. As regards, the areas alleged to have been wrongly included in Wards Nos. 9 and 11, it may be observed that these areas are small additions to Wards Nos. 9 and 11. In view of their situation, they could not have been included in any wards other than those in which they have been included. The total voters in Ward No. 11 are 593 and wrong inclusion of 88 voters would not affect the delimitation. Same is the case with respect to the Ward No. 9 All that has been stated by the petitioner in respect of Nayasar Abadi alleged to have been wrongly included in Ward No. 9 is that this area has considerable number of voters and nothing beyond that.

In light of the foregoing discussion, I allow this writ application in part and set aside the election of respondent No. 11 from Ward No. 10. The rest of the petition is dismissed. The parties are left to bear their own costs.