Uroj Abbas vs DY.Chairman/Collector, Lucknow & Another

B.L. Loomba, J.—These three connected writ petitions arise out of the election held for the two Trustees of the Committee of Management for the Husainabad and Allied Trusts, Lucknow.

The Petitioners were the candidates in that election. The Husainabad and Allied Trusts were established under the Provisions of the Husainabad Endowment Act, 1878. In the year 1960, U.P. Muslim Waqfs Act came into force and it became applicable to such endowments. The scheme of administration regarding the properties of the Husainabad and Allied Trusts was framed by the State Government under section 47 of the U.P. Muslim Waqfs Act and came into force from November 29, 1960. Its clause 2 provides for constitution of the Committee of Management for Husainabad and Allied Trusts. Its clause (d) provides that two persons who shall be called �Trustees� should be elected in the manner prescribed in clause 14. In accordance with that clause the Collector, Lucknow issued notification for the election of the two Trustees and appointed the City Magistrate, Lucknow as the Returning Officer. The Collector fixed 1251988, for filing nominations. It appears that nominations were filed by the date fixed and the candidates were allotted symbols. The nomination of Uroj Abbas who is petitioner in Writ Petition No. 3896 of 1988 was, however, rejected on 1751988. He, therefore, filed the aforesaid writ petition challenging the rejection of his nomination and seeking direction in the nature of Mandamus permitting him to contest the election. He was permitted by an interim order dated 2051983 to contest the election and there is no dispute that he contested it. In his case the opposite party filed counter affidavit for vacating the stay order and dismissing the writ petition on the ground that he did not secure majority of votes getting himself declared as elected trustee.

While the aforesaid writ petition was pending Hasan Imam who is petitioner in Writ Petition No. 1560 of 1989 moved an application for impleading him as a party. That application was rejected on 2021989. He then filed Writ Petition No. 1560 of 1989 pleading that the election was held on 2151988 but counting of ballot papers was not done immediately after close of the voting in presence of the candidates or their authorised agents and so it may be done now. It has also been pleaded by him that the City Magistrate who had been appointed Returning Officer has been transferred so the Deputy Commissioner opposite party no. 1 may be directed to appoint a new Returning Officer. A counter affidavit has been filed in the case by the Returning Officer pleading that the counting of votes was done immediately after the close of the poll as required under the Scheme of Management but the results were not declared as there was an adinterim order to that effect in Writ Petition No. 3896 of 1988, Uroj Abbas v. Collector, Lucknow.

Mojiz Husain alias Shahenshah, who was also one of the contesting candidates, filed third Writ Petition No. 2155 of 1989 alleging that the ballot papers were counted after close of the poll and the results could not be declared on account of the adinterim order. Since the elections have taken place and the ad interim order has been modified by order dated 2021979 for declaration of the results so necessary direction should be issued to the Returning Officer to declare the result.

These writ petitions were heard together with the consent of the parties'' counsel.

There is no dispute that Uroj Abbas contested the election on the basis of the ad interim order passed by the Court in his writ petition. Since main relief in his writ petition was that he may be permitted to contest the election and he has contested the election, that relief need not be granted to him. So far as other relief relating to rejection of nomination papers is concerned, it also need not be granted. The question of validity of rejection would arise when he is found to have secured majority of votes and he has not disputed the contention of the opposite party mentioned in counter affidavit that he stands nowhere in the election contest. Moreover, rejection of nomination has been made on certain facts and their truth cannot be ascertained in the writ petition. His writ petition is, therefore, liable to be dismissed.

Subclause (xi) of Clause 14 of the Scheme of Management lays down that the ballot papers shall be counted immediately on the close of voting in the presence of the candidates or their authorised agents and the results should be declared immediately thereafter It appears from the counter affidavit filed by the Returning Officer that in accordance with this provision, ballot papers were counted immediately after the voting, but the declaration of result could not be done on account of the interim order passed by this Court. There is no reason to disbelieve him. This result can now be declared after the modification of the aforesaid interim order. The appointment of a new Returning Officer for counting or direction for counting of ballot papers does not, therefore, appear necessary. The writ petition filed by Hasan Imam has also, therefore, no merits.

Since the election took place on 2151988 and the result of the election could not be declared on account of litigation pending in the Court, it appears necessary that the result of the election may be declared now. The writ petition filed by Mojiz Husain, therefore, succeeds.

It may, however, be made clear that after the declaration of the result of the election if any one feels aggrieved he may file election petition under Clause 10 of the Scheme of Management,

Writ Petitions No. 3896 of 1983 and 1560 of 1989 are dismissed.

Writ Petition No. 2155 of 1989 is allowed and the Returning Officer shall declare the result of the election held on 2151988 for election of the two Trustees under clause 2 (d) of the Scheme of Management without any delay. In the special circumstances of the case, parties are directed to bear their own costs.

(Order accordingly)