2001(2) ALL MR 82
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

G.D. PATIL AND D.B. BHOSALE, JJ.

Kalpana Madhav Kirave & Anr. Vs. The Chief Officer & Ors.

Writ Petition No.323 of 2001

15th February, 2001

Petitioner Counsel: Shri. A.Y.SAKHARE, Shri. L.M.ACHARYA
Respondent Counsel: Shri. V.P.SAWANT, Shri. K.Y.MANDLIK, Shri. S.B.SHETYE

Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (1965), Ss.51 and 74(2) - Election of President of Municipal Council - Stay on meeting - Powers of Collector stand delegated to sub-divisional officer under Sec. 74(3) and 51(3) - Sub-divisional officer therefore has power to appoint officer to preside over meeting to hold election of President - Additional Commissioner has no jurisdiction to entertain municipal appeal under Sec.51(5) - State government not justified in entertaining Misc.Appeal as revision and granting stay to election meeting.

Subsection (3) of Section 51 provides that the Collector or such officer as the Collector may by order in writing appoint in this behalf, preside over the special meeting convened for election of the President. "Such officer" when presiding over the meeting, he enjoys all powers of the President except the right of vote. Government Resolution dt.28th June 1991 indicates these powers of the Collector which have been delegated to the Sub Divisional Officers in terms of Section 74(3) and further specifically indicate that the powers of the Collector under Section 51(3) stand delegated to Sub Divisional Officer. Sub Section (5) of Section 51 indicates thats the dispute regarding the election shall be referred to the State Government. It does not confer any right to file dispute, making grievance about pre-election stages.

Additional Commissioner has no jurisdiction to entertain the Municipal Appeal under Section 51(5) of the Act and the Government, therefore, ought not to have entertained the Misc.Appeal as Revision against the order passed by the Additional Commissioner.

It is now well settled position of law that once the election process is set in motion, it should not be arrested for any reason whatsoever, particularly when it has reached final stage.

Section 318 does give powers to the State Government to call for and examine record pertaining to any case pending before the Council or Officer and may pass such order in reference thereto as it thinks fit. But Government was not otherwise justified in entertaining the Misc.Appeal as Revision by exercising its powers under Section 318 and to grant stay to the meeting of the Council which was to elect the President particularly when the order of the Additional Commissioner, dated 16th January 2001 was without jurisdiction and hence nullity. And further particularly when the State Government while entertaining the Misc.Appeal has totally ignored and overlooked that the rights of the parties are governed by Section 51(5) of the Act enables them to raise dispute regarding the election of the President. [Para 10,11,12]

Cases Cited:
Ashok Maniklal Harkut Vs. Collector, Amravati, 1988 Mh.L.J. 378 [Para 13]


JUDGMENT

D.B.BHOSALE, J. :- Rule. By consent, rule made returnable forthwith. Shri. V.P.Sawant, Learned Counsel appearing for the Respondent Nos. 1 and 2 waives service of the notice; Shri. K.Y.Mandlik, Learned Counsel appearing for the Respondent No.8 waives service of the Notice and Shri. S.B.Shetye, Addl. Government Pleader, waives service of the notice for the Respondent Nos. 3 to 7. Heard the Learned Counsel for the respective parties.

2. Now before we look at the relevant provisions and consider the challenge made, it would be perhaps better just to state briefly what credentials of the Petitioners are and what are the facts and grounds for this petition. The Learned Counsel appearing for the parties have extensively argued this matter before us inviting our attention to several provisions of the Maharashtra Municipal Councils Nagar Panchayats and Industrial Townships Act, 1965 and the Rules framed thereunder (hereinafter referred to as "the said Act").

3. The Petitioners and the Respondent No.8 are the Members of the Respondent No.2-Bhor Municipal Council, Bhor. The post of the President of the said Municipal Council was to fall vacant on 18th January, 2001. As required under the provisions of Section 51 of the said Act, the Respondent No.4 viz. Sub Divisional Officer, Bhor issued a notice of the election of the President of the Respondent No.2-Council on 11th January 2001. In the said notice, time was granted for filing of the nominations till 17th January 2001 upto 12 noon and the meeting for election was fixed on 18th January 2001. The Notice also indicated that the post of the President was reserved for a woman belonging to the Other Backward Class category. It was made clear in the notice that the Respondent No.4 in exercise of the powers conferred on him under Section 51(3) of the said Act, nominated one Shri. Sanjay Kondetkar, the Tahasildar of Bhor, to act as a Returning Officer of the meeting.

Till the time granted for filing of the nominations, six nomination papers were filed to the post of the President by the Petitioner No.1 alone. Hence according to the Petitioners, there was no contest and the only formality of declaring the election of the Petitioner No.1 had remained to be complied with on the date of the election, i.e. 18th January 2001.

4. The Respondent No.8, on 16th January 2001 filed an Appeal before the Respondent No.6 Additional Commissioner, Pune Division, Pune, bearing Municipal Appeal No.1 of 2001 solely on the ground that the Respondent No.4 in the present Writ Petition has no powers to issue the notice of the election as required under Section 51(2) of the said Act. On the aforesaid Appeal, the Respondent No.6 by his order dated 16th January 2001 granted stay to the meeting convened on 18th January 2001. The stay was granted by the Respondent No.6 at 6 p.m. on 16th January 2001. Petitioner further claims to have handed over a copy of the stay order to the Tahsildar at 9.35 a.m. and to the Respondent No.1 at 9.45 a.m., on 17th January 2001.

It transpires from the affidavit filed by the Chief Officer that when the Respondent No.8 informed him about the stay granted by the Respondent No.6 he made telephone call in the presence of the Respondent No.8 to the office of the Commissioner, when in turn he was informed that the stay granted on 16th evening has been vacated by the Commissioner probably on realising the error in respect of the jurisdiction of the Respondent No.4-Sub Divisional Officer, Bhor to hold the election.

As a result of the order passed by the Commissioner on 17th January 2001, the meeting commenced as scheduled on 18th January 2001 at 1 p.m. The meeting was attended by 12 Councillors out of 19 Councillors of the Respondent No.2 Council. However, the Presiding Officer suddenly declared that the meeting would not proceed since the Respondent No.7, i.e. the State Government has granted stay to the said meeting. The Petitioners strongly objected to the adjournment of the meeting and also made a written representation at 1.40 p.m. In the meanwhile, the stay order was also communicated by the Respondent Nos. 5 and 6 by Fax which was received by the Respondent No.4 at 2.27 p.m.

As a result of the stay granted by the Respondent No.7 the meeting was adjourned without transacting the business of the election to the post of the President. Under the circumstances, the Petitioners have approached this Court and have taken a serious exception to the order passed by the Respondent No.7 - State of Maharashtra which is impugned in the present petition.

5. Mr.Sakhare, Learned Counsel appearing for the petitioners has submitted that the Respondent No.3 ought to have declared the Petitioner No.1 elected as President of the Respondent No.2 Council. According to him, granting of stay to the meeting by the Respondent No.7 was illegal, arbitrary and violative of the fundamental rights of the Petitioners. He also argued that the election of the Petitioner No.1 as the President of the Respondent No.2 Council was foregone conclusion as 12 Councillors supporting her were present in the meeting.

He has raised the following issues for our determination. (a) Whether the Appeal filed by the Respondent No.8 initially before the Additional Commissioner, the Respondent No.6 and thereafter a Revision before the State Government, the Respondent No.7 was maintainable and further whether the State Government was justified in granting stay to the meeting dated 18th January 2001 which was to elect the President of the Respondent No.2 Council ? (b) Whether the State Government can invoke its powers under Section 51(5) of the said Act and grant stay to the election ? and (c) Whether the Respondent No.4 had jurisdiction to hold election and appoint the Respondent No.3 as Returning Officer for that purpose ? The Learned Counsel appearing for the Petitioners took us through the various provisions of the said Act and submitted that the impugned order of the Respondent No.7 granting stay to the meeting was without jurisdiction and hence patently illegal.

6. On the other hand, Shri. Mandlik, Learned Counsel appearing for the Respondent No.8 submitted as follows :-

(i) That the Respondent No.4 has no power to hold the election of the President of the Council and it is only the Collector who is empowered to convene a special meeting of the Councillors for the election of the President and hence the notice issued by the Respondent No.4 - Sub Divisional Officer is illegal and the meeting in pursuant thereto cannot be held. He further contended that the Respondent No.7 - State Government, has power to interfere and grant stay to the election of the President under Section 51(5) of the said Act. He further pointed out that the provision of subsection (2)(b) of Section 51 of the said Act has not been complied with as the date of election ought to have been fixed within twenty-five days prior to the date of expiry of the office of the outgoing President and not on the date of expiry of the period of the earlier President.

One Smt.Laxmi Dalvi, the Councillor, who claims that she was entitled to contest the Presidential election, intervened in the present writ petition through her Advocate Mr.Patil. The Learned Counsel appearing for her filed an affidavit of Smt.Laxmi Dalvi and contended that because of the stay granted by the Commissioner on 16th January 2001 she did not file her nomination and thereby she was deprived of the election for the post of President.

7. Mr. Shetye, Learned Addl. Government Pleader appearing for the Respondent Nos.4 to 8 placed reliance on Section 318 and submitted that the impugned order of the Respondent No.7 was passed under that provision. He fairly conceded that the exercising of the powers by the Respondent No.4 under Section 51(2) of the said Act is valid as the powers are conferred on the Respondent No.4 under Section 74(3) of the said Act.

8. Having regard to the rival contentions raised by the Learned Counsel appearing for the parties in the Writ Petition, we proceed to examine the relevant provisions and record our findings on each of the issues raised by the Learned Counsel.

9. We would first like to deal with the contention raised by the Learned Counsel appearing for the Respondent No.8 at whose instance the Additional Commissioner as well as the State Government stayed the meeting which was to elect President of the Respondent No.2 Council, that under Section 51(2) and (3) of the said Act, the Collector alone has power to convene a special meeting of the Councillors for the election of the President and under subsection (3) of Section 51 the Collector has to preside over the special meeting or by such officer as the Collector may by order in writing appoint in this behalf.

10. We would like to make reference to few provisions which, according to us, may be relevant for resolving the controversy.

Section 74 of the said Act deals with the powers of different authorities under the Act which include the appointment of Director, of Municipal Administration and their powers and the powers of the Collector. Section 74(2) and (3) of the said Act reads as under :-

"74. Appointment of Director and Regional Directors of Municipal Administration and their powers and the powers of the Collector - (1) xx xx xx

(2) The Director, and the Collector of each district, shall exercise such powers and perform such duties as are conferred and imposed upon them by this Act or any rule made thereunder. The State Government may, by notification in the Official Gazette, direct that any power (except the power to make rules) or duty which by this Act or by any rule made the reunder is conferred or imposed upon it shall, in such circumstances and under such conditions, if any, as may be specified, be exercised or performed also by the Director or the Collector.

(3) Each Regional Director, and each Assistant and Deputy Collector, shall within his respective jurisdiction be competent to exercise any of the powers and to perform any of the duties conferred and imposed upon, or delegated to, the Director and the Collector, respectively;"

Provided that, the Director or, as the case may be, the Collector, may, subject to the general or special orders of the State Government reserve to himself such powers and duties as he may, by order, specify in this behalf."

Section 74(2) empowers the State Government to direct that any power or duty conferred or imposed upon it by this Act or the Rules made thereunder, shall be exercised or performed also by the Director or the Collector of the districts which are specified in the Notification published in the Official Gazette. Similarly, under Sub-section (3) of Section 74, each Regional Director and each Assistant and Deputy Collector who is called Sub Divisional Officer is competent to exercise any of the powers and to perform any of the duties conferred and imposed upon, or delegated to the Director and the Collector respectively.

Section 51 deals with the election of the President of the Council. We are concerned with sub-sections (2), (3) and (5) of Section 51 of the said Act which read as under :-

"51. Election of President -

(1) xx xx xx

(2) The Collector shall convene a special meeting of the Councillors for election of a President -

(a) in the case of election of a President after general elections, within twenty-five days from the date on which the names of Councillors elected to a council are published or, as the case may be, first published under sub-section (1) of Section (19), in the Official Gazette; and

(b) in the case of subsequent election of a President, within twenty-five days prior to the date of expiry of the term of office of the outgoing President:

Provided that a meeting under clause (a) shall not be held before the expiry of the term of office of outgoing Councillors;

(3) The meeting called under sub-section (2) shall be presided over by the Collector or such officer as the Collector may by order in writing appoint in this behalf. The Collector or such officer shall when presiding over such meeting, have the same powers as the President of Council when presiding over a meeting of the Council has, but shall not have the right to vote;

Provided that, notwithstanding anything contained in this Act for regulating the procedure at meetings including the quorum required thereat, the collector or the officer presiding over such meeting may, for reasons which in his opinion are sufficient, refuse to adjourn such meeting.

(5) Any dispute regarding election of the President shall be referred to the State Government whose decision in that behalf shall be final.

Under sub-section (2) of Section 51 the powers are conferred on the Collector to convene a special meeting for the election of the President. Clause (b) of sub-section (2) of Section 51 provides that in the case of subsequent election of a President, the Collector shall convene a special meeting of the Councillors for election of the President within 25 days prior to the date of expiry of the term of office of the outgoing President. In the instant Petition, since it was subsequent election of the President, we need not have to make any reference to clause (a) of sub-section (2) of Section 51. Subsection (3) of Section 51 provides that the Collector or such officer as the Collector may by order in writing appoint in this behalf, preside over the special meeting convened for election of the President. "Such Officer" when presiding over the meeting, he enjoys all powers of the President except the right of vote. Subsection (5) of Section 51 provides reference of dispute regarding election of the President to the State Government. Our attention was also drawn to the Government Resolution dated 28th June 1991. This resolution and the order dated 30th December 1993 of the Collector Pune attached thereto indicate these powers of the Collector which have been delegated to the Sub Divisional Officers in terms of Section 74(3) and further specifically indicate that the powers of the Collector under Section 51(3) stand delegated to Sub Divisional Officer. The Respondent No.4 thus gets all the powers vested in the Collector under Section 51(3) and, therefore, also gets the power to appoint officer to preside over the meeting to hold election of President. Under the circumstances, we do not find any force in the submission of Mr.Mandlik that the Respondent No.4 had no powers to issue notice dated 11th January 2001 of the election and to appoint the Respondent No.3 as Officer to preside over the meeting to elect President. We hold that the notice issued by the Respondent No.4 is perfectly within his jurisdiction and legal. The Learned Assistant Government Pleader also fairly conceded and argued that the Respondent No.4 has powers to appoint the Respondent No.3 and hold election of the President.

11. In the light of the aforesaid provisions of Sections 74 and 51 of the said Act, now, we would like to consider the main challenge of the Petitioners as to whether either the Additional Commissioner, Respondent No.6 and the State Government, Respondent No.7 have any powers to grant stay to the election of the President when the process of election in the meeting convened for that purpose was in progress. The Respondent No.8, on 16th December 2000, approached the Additional Commissioner, Respondent No.8 by way of Municipal Appeal No.1 of 2001 by making, the only grievance that the action of the Respondent No.4-Sub Divisional Officer in conducting the election of the President was without jurisdiction. While raising this objection, he relied on Section 51(3) of the Said Act. In this Appeal, the Additional Commissioner granted stay to the election of the President by his order dated 16th January 2001 which admittedly he passed at 6 p.m. on that day. Having realised the error committed, the Additional Commissioner on the next day in the morning around 10 Clock vacated the stay granted on 16th January 2001. It is thereafter the Respondent No.8 challenged the order of the Commissioner before the Honourable Minister for Urban Development by way of the Miscellaneous Appeal and obtained the impugned stay order.

Mr. Mandlik, Learned Counsel appearing for the Respondent No.8 who approached the Additional Commissioner as well as the Honourable Minister for Urban Development could not reply our query as to under what provision he approached the Commissioner by way of Appeal and thereafter to the Minister. He tried to justify his Appeal before the Additional Commissioner, contending that he filed the same under Section 51(5) of the said Act. In our view, a plain reading of sub-section (5) of Section 51 indicates that the dispute regarding the election shall be referred to the State Government. It does not confer any right to file dispute, making grievance about pre-election stages. When the language of the statute is plain and there is no ambiguity in it we do not see any reason for the Respondent No.8 for filing of the Appeal before the Additional Commissioner at pre-election stage under Section 51(5) of the said Act. We are, therefore, of the view that the Additional Commissioner had no jurisdiction to entertain the Municipal Appeal under Section 51(5) of the said Act, as contended by Mr.Mandlik.

An attempt was also made to justify entertaining of the Appeal by the Additional Commissioner, contending that the State Government has delegated and/or conferred its powers to the Additional Commissioner by issuing the Notification under Section 74(2) of the said Act. In support of this contention, reliance was placed on a Government Resolution dated 4th June 1976. By this Resolution, the Commissioners as the Regional Directors of Municipal Administration are delegated to exercise the powers as shown in the Annexure accompanying the Order No. DME 1076-II dated 4th June 1976. We perused the resolution and annexure and found that the Annexure does not make any reference to Section 51(5). The Learned Assistant Government Pleader appearing for the State rightly pointed out that the powers conferred under Section 74(2) by the Government on the Commissioner are not conferred on the Additional Commissioner. Apart from the fact that the Additional Commissioner could not have exercised the powers and entertained the Appeal under Section 51(5) at pre-election stage, entertaining of the Appeal by the Additional Commissioner itself was patently illegal. In the wake of this position, we have no hesitation in recording that the Additional Commissioner entertained Municipal Appeal No.1 to 2001 without jurisdiction.

12. This takes us to consider whether the State Government was justified in entertaining the Misc.Appeal of the Respondent No.8 and granting stay to the election of the President of the Respondent-Council. In that Appeal, the order of the Additional Commissioner dated 17th January 2001 was under challenge. The Government on 18th January 2001 granted stay to the election of the President and communicated the same to the Respondent No.3 when the meeting of the election was in progress. The further question which requires consideration is whether the Misc. Appeal was maintainable against the orders passed by the Respondent No.8 - Additional Commissioner.

The Learned Counsel appearing for the parties have advanced extensive arguments on the issues mentioned above. The Learned Assistant Government Pleader tried to justify the action of the State Government contending that, it has exercised jurisdiction under Section 318 of the Act by treating Misc.Appeal filed by the Respondent No.1 as Revision and granted stay to the election of the President.

We perused the Misc.Appeal filed by the Respondent No.8 before the Hon'ble Minister for Urban Development. In the said Appeal the only grievance made was that the stay granted on 16th January 2001 has been vacated on 17th January 2001 without issuing written order to the Respondent No.8. The Respondent No.8 has further made a grievance in the said Appeal that one Smt.Laxmi Dalvi, the only Councillor who was entitled to contest the President's election, would lose her right to contest the election. It is very interesting to note that Smt.Laxmi Dalvi at no stage has approached either the Commissioner or the State Government.

We have already held that the Additional Commissioner did not have jurisdiction to entertain the Appeal filed before him, and his order of stay granted on 16th January 2001 was without jurisdiction and the order vacating of the stay on 17th January 2001, was therefore not unjustified. The Government, therefore, ought not to have entertained the Misc.Appeal as Revision against the order passed by the Additional Commissioner, and granted stay to the meeting scheduled on 18th January 2001. Passing of the order on 18th January 2001 by the Government shows non-application of mind.

Moreover, it is now well settled position of law that once the election process is set in motion, it should not be arrested for any reason whatsoever, particularly when it has reached final stage. In the instant petition, the meeting for electing the President was convened on 18th January 2001 at 1.00 p.m. The only business of the meeting was to elect the President which Returning Officer could have done within a shortest possible time as there was no contest at all. However, it is only because of the Government's interference the election process remained incomplete and the meeting called for the election stood adjourned.

It appears from the record that the State Government granted stay to the election of the President on the Misc.Appeal filed by the Respondent No.8 on 18th January itself and the stay order was communicated to the Returning Officer at 2.27 p.m. through the Respondent Nos. 4 and 5 by Fax. The Respondent Nos. 3, 4 and 5 claim that it was communicated on telephone before 1.00 p.m. on 18th January 2001. Even if we accept that the stay order was granted by the Hon'ble Minister before the meeting commenced, still the question remains whether there was any justification for passing such order when the election process was already set in motion and the election to the post of President was to take place at 1.00 p.m. on the same day. In our view the Government was wrong in passing order of stay knowing fully well that the meeting was to elect the President at 1.00 p.m. on that day.

Section 318 does give powers to the State Government to call for and examine record pertaining to any case pending before the Council or Officer and may pass such order in reference thereto as it thinks fit. The Government can exercise these powers at any stage. It is not necessary in the instant matter to enter into the controversy whether these powers are delegated to the Commissioner or not and whether the Government after such delegation could exercise the same powers or not, since we have reached to the conclusion that the Government was not otherwise justified in entertaining the Misc.Appeal as Revision by exercising its powers under Section 318 and to grant stay to the meeting of the Council which was to elect the President particularly when we observed that the order of the Additional Commissioner, dated 16th January 2001 was without jurisdiction and hence nullity. And further particularly when we see that the State Government while entertaining the Misc. Appeal has totally ignored and overlooked that the rights of the parties are governed by Section 51(5) of the Act which enables them to raise dispute regarding the election of the President. Under these circumstances, we have no hesitation in recording our view that the order of the State Government granting stay to the election of the President is totally unsustainable and therefore we quash and set aside the same so also the pending proceedings before it since, inter alia, even the Learned Asstt. Government Pleader Mr.Shetye, as indicated herein above, also conceded that the exercising of the powers by the Respondent No.4 under Section 51(3) of the Act is valid.

13. The next question arises for our consideration was the submission of Mr.Mandlik, Learned Counsel appearing for the Respondent No.8 that the meeting convened on 18th January 2001 was bad in law as under Section 51(2)(b), the Collector ought to have convened the meeting within twenty-five days prior to the date of expiry of the term of office of the outgoing President and not on the date of expiry. In the instant Petition, the term of the outgoing President was to expire on 18th January 2001. Admittedly in the present case, the meeting was convened by the Respondent No.1 by notice dated 11th January 2001, i.e. prior to the date of expiry of the term of office of the outgoing President. Mr.Mandlik tried to argue that by the word "convene", what is indicated was to hold meeting before expiry of the term of outgoing President. This Court had an occasion to deal with, somewhat similar situation where the words "convene and holding of the meeting" were interpreted in the case of Ashok Maniklal Harkut Vs. Collector, Amravati and ors. reported in 1988 Mh.L.J. page 378. The relevant portion in para 15 of the said judgment reads as follows:-

"This brings us to the second question, that is, whether a meeting held after the period of 10 days of the receipt of the requisition under sub-section(2) of Section 55 of the Act is illegal and, therefore, resolution passed therein is also void ab initio. The main question which requires consideration in this behalf is to find out as to what is the meaning of term "convene" in sub-section (3) of Section 55. The expression "convene" came for consideration before the Full Bench of this Court in Chaitram Dagadu Vs. Malegaon Panchayat Samiti & Ors. 1965 Mah.L.J. 663. After making reference to the dictionary meaning of the said term, the Full Bench observed, that, the word has more than one meaning and the question as to what meaning it bears in a particular provision must be decided by a reference to the context in which it has been used. The word "convene" is used in Sections 23(1), 51(2) and 81(5). On the other hand the word "call" is used in various other sections of the Act, including Sections 81(1), 1(a), 3, 4(b), 82(2), 82(3) and 82(4) etc. In sub-section (5) of Section 81 an expression "notice convening the meeting to be held" is used. Thus it appears that the said expression is not used by the Legislature in a precise sense. It is equally true that in Chaittram's case word "convene" was construed by the Full Bench to mean to summon since it would have been impossible to hold any lawful meeting of the Panchayat Samiti for consideration of no confidence motion if such a construction was not placed, which is not the position in the present case. Notice required for convening special meeting is merely 3 days clear notice. Therefore, by giving 3 days clear notice, a special meeting could be convened within ten days."

In view of the aforesaid Full Bench Judgment, we are unable to accept the contention of the Learned Counsel appearing for the Respondent No.8.

14. The Learned Counsel appearing for the parties in the instant Writ Petition have raised a dispute regarding as to what happened in the office of the Chief Officer, Respondent No.1, on 17th January 2001. According to the Respondent No.8, he along with one Smt.Laxmi Dalvi, the only Councillor who was entitled to contest the election of the President being a woman, belonging to O.B.C., went to the office of the Respondent No.1 and informed him about the stay granted by the Commissioner on 16th January 2001 evening. There is inconsistency in the statement of the Respondent No.8 and the affidavit filed in the present proceedings by Smt. Dalvi. The Respondent No.8 in his Misc.Appeal filed before the State Government has specifically stated that when he informed the Returning Officer about stay granted by the Commissioner on 16th January 2001, the Returning Officer did not stop the election process and committed wrong and contempt of the order issued by the Additional Commissioner and informed the Respondent No.8 that he has received the message from the Commissioner's office that the stay has been vacated. He has further stated in the Memo of his Misc. Appeal that the candidate from the party of the Respondent No.8 did not file nominations because the election process was stayed by the Additional Commissioner. Smt.Dalvi in her affidavit has stated that her nomination was not accepted on 17th January 2001 in view of the stay granted by the Additional Commissioner. The Respondent No.1 the Chief Officer has filed the Affidavit and denied the allegations of Smt.Dalvi and also of the Respondent No.8. In view of these inconsistent statements regarding the facts as to what happened on 17th January, 2001, we are not inclined to go into this aspect at all in writ jurisdiction under Article 226 of the Constitution of India. However, it is open to the parties to raise this controversy as to whether Smt.Dalvi made any attempt to file nomination on 17th January 2001 and the Returning Officer refused to accept the same and thereby deprived her from contesting the election, by way of election dispute, if filed under Section 51(5) of the said Act.

15. In these circumstances, we allow the instant Writ Petition. The order dated 18th January 2001 passed by the Respondent No.7 is hereby quashed and set aside, so also the proceedings pending before the Respondent Nos. 6 and 7 initiated at the instance of the Respondent No.8. We direct the Respondent Nos. 3 and 4 to proceed to hold the election of the President of the Respondent No.2 Council from the stage it was left incomplete, by holding a meeting of the Council as an adjourned meeting of the original meeting dated 18th January 2001.

Rule is accordingly made absolute, with no order as to costs.

An ordinary copy of this order duly authenticated by the Personal Secretary of this Court may be made available to the parties.

Petition allowed.