Jagannadhadas, C.J.
1. This is an application under Article 226 of the Constitution, for a direction in the nature of 'Quo Warranto', and for other ancillary directions, raising the question as to whether the opposite party No. 1, one Jadumani Behera, validly continues to hold the office of the Municipal Councillor of the Cuttack Municipality. The petitioner is a Municipal Councillor at Cuttack Ward III. The present Municipal Council of the Cuttack Municipality was constituted under the Orissa Municipal Act of 1950, which was brought into force on the 16th of April, 1951. The first general elections under the Act took place on 20th of April, 1951. The opposite party No. 1 was one of the candidates for Ward No. 1 of the Municipality. For the said Ward a seat for a member of the scheduled castes was also reserved under Section 11 read with Section 12 (2) (b) of e Act. Ward No. 1, therefore, for which opposite party No. 1 stood at the general elections was a two-member-ward of which one was reserved for a member of the scheduled castes.
For the said Ward, there were three candidates, viz., (1) Naba Sethi, (2) Jadumani Sahu and (3) Jadumani Behera, of these, the 1st and the 2nd were members of the scheduled caste and the third was a non-scheduled-caste member. The polling took place on 20th of April, 1951, and the District Magistrate of Cuttack, who was the election officer found that the three candidates secured votes as follows : Naba Sethi -- 664, Jadumani Behera (opp. Party No. 1) -- 592, and Jadumani Sahu -- 505. The District Magistrate declared Naba Sethi and Jadumani Sahu to have been elected in spite of the fact that opposite party No. 1, Jadumani Behera polled larger number of votes than Jadumani Sahu.
Thereupon, Jadumani Behera, applied to set aside the declaration of election of Jadumani Sahu and for a declaration that he himself was duly elected to the District Judge of Cuttack, as the Election Tribunal under Section 29 of the Orissa Municipal Act. The Tribunal rejected his application and thereupon the opposite party No. 1, the said Jadumani Behera, came to this Court for a writ under articles 228 and 227 of the Constitution, which was heard as M.J.C. 98 of 1951, by this Bench. We held that the declaration of Jadumani Sahu as duly elected, made by the Election Officer, and the dismissal of the application calling it in question, by the District Judge, Cuttack, as the Election Tribunal, were both based on a fundamental misconception of the relevant rules relating to reservation of seats for the election of members of the scheduled castes.
We accordingly set aside the decision of the District Judge as the Election Tribunal and also set aside the declaration by the Election Officer, of Jadumani Sahu as validly elected to Ward No. I, and we declared opposite party No. 1 to have been validly elected for the non-reserved seat for Ward No, 1 of the Municipality. Our judgment in that case has been reported in 'JADUMANI BEHERA v. JADUMANI SAHU', ILR (1951) Cut 603. The present application arises out of certain events which have happened since then. Our judgment declaring opposite party No. 1 to have been duly elected was delivered on 3.12.51.
The District Magistrate seems to have thought it necessary that there should be a further notification by him as the Election Officer and he issued on 4.12.51, the following notification :
'NOTIFICATION'
No. 1330/M.
Dated Cuttack, the 4th December, 1951.
In pursuance of the orders of the Hon'ble High Court in 'JADUMANI BEHERA v. JADUMANI SAHU', M J C No. 98 of 1951, D/- 3-12-1951, I, P. C. Mohanty, Esqr., I.A.S., District Magistrate Cuttack & Election Officer, Cuttack Municipality, do hereby notify that Jadumani Behera is declared to be validly elected for the non-reserved seat in Ward No. 1 of the Cuttack Municipality in place of Jadumani Sahu declared elected under Notification No. 3313/L.S.G., dated 3-5-51 read with Notification No. 3401/L.S.G. dated 9-5-51.
(Sd) P. C. MOHANTY,
District Magistrate, Cuttack,
&
Election Officer, Cuttack Municipality.
2. On 18.12.51, the said Jadumani Behera sent a letter of resignation to the Chairman, Cuttack Municipality, and another letter on the same day and in identical terms to the District Magistrate, which is as follows :
'To
The Chairman,
Cuttack Municipality, Cuttack.
Sir,
With reference to Notification No. 1330/M, dated the 4th December, 1951, declaring me validly elected as a Councillor to the Cuttack Municipality from Ward No. 1, I beg to resign the same, on account of some personal inconvenience and domestic troubles, as I would not be able to function as such to the entire satisfaction of the rate-payers.
So I request that my resignation may kindly be accepted and the vacancy filled up according to law.
Tulshipur, Yours faithfully,Cuttack, The 18th (Sd) JADUMANI BEHERA.'December, 1951.On receipt of the above, the District Magistrate forwarded copies of the letter of resignation to the Chairman, Cuttack Municipality, opposite party No. 2 and to the Deputy Secretary to the Government of Orissa, Local Self-Government Department, opposite party No. 4. The Chairman, thereupon, convened a special meeting of the Municipal Council on 22.12.51 and placed the resignation of Jadumani Behera before that meeting. It would appear that Jadumani Behera who had sent in his letter of resignation on the 18th, received notice of this meeting, but he appears to have sent a letter to the Chairman, intimating that since he had already resigned, he considered it improper to attend the meeting. The Municipal Council at that meeting accepted his resignation.
The chairman, thereafter, sent a letter to the District Magistrate, Cuttacfc, dated 26.12.51, whereby he intimated the unanimous resolution of the councillors accepting the resignation of Jadumani Behera and requesting that immediate steps for re-election to the seat may be taken. That letter is in the following terms :
'Office of the Cuttack Municipality. No. 2779 Dated the 26th December, 1951.
From : Sri N. K. Patra, B.A., Chairman, Cuttack Municipality,
To : The District Magistrate, Cuttack.
Sub : Resignation of Sri Jadumani Behera,Municipal Councillor.
Sir,
With reference to your memo. No. 1552/g, dated 18.12.51, following a copy of letter of resignation dated 18.12.51 from Sri Jadumani Behera, I am to state that he also sent me a letter of resignation which I received on 18-12-51 and placed it with your memo, before the Councillors at a meeting held on 22.12.51 for consideration. A resolution unanimously passed by the Councillors in the above meeting is as follows :
'Resolved that the resignation of Sri Jadumani Behera be accepted and the District Magistrate, Cuttack, required to take steps to fill up the vacancy caused by the said resignation.' I would, therefore, request that you will be good enough to take immediate steps for re-election to the seat under Section 45 of the Orissa Municipal Act, 1950.
Yours faithfully,
(Sd) N. K. PATRA,
Chairman, Cuttack Municipality.'
The District Magistrate appears to have taken no action in this matter for the holding of re-election as requested therein. He explains in his affidavit to this Court that he was awfully busy with the general elections to the State Assembly and to the Parliament and could not therefore take any action. It does not appear from the record whether or not any copy of this letter dated 26-12-51 addressed by the Chairman to the District Magistrate intimating acceptance of the resignation by the Municipal Council was communicated to opposite party No. 4, the Deputy Secretary to the Govt. of Orissa, L.S.G. Department.
It would appear, however, that meanwhile, on 27th December 1951, Government Notification No. 7348-L.S.G., was issued, apparently in presumed further compliance with the order of this Court in M.J.C. 98 of 1951, dated 3rd December, 1951. declaring Jadumani Behera to be elected as councillor of the Cuttack Municipality, and the same was published in the Orissa Gazette dated 11.1.52. The affidavit of the Deputy Secretary to the Government, L.S.G. Department, filed in this Court states that on receipt of the letter No. 1551 dated 18.12.51 from the District Magistrate (presumably the letter referred to is the one forwarding a copy of the lecter of resignation of opposite party No. 1, Jadumani Behera), he consulted the Law Department, and as a result of that consultation, he wrote a letter to the District Magistrate on 4-2-52 stating that the resignation tendered by Jadumani Behera on 18th December, 1951, before the Government Notification declaring him elected as a councillor was issued, was invalid.
He therein pointed out to the District Magistrate that a fresh resignation letter should be obtained and be accepted once again by the Municipal Council. That letter is Annexure E, and is in the following terms :
'Government of Orissa, Development (L.S.G.) Department.
No. 918 L.S.G./MI-E-15/51.
From: Sri D. N. Patnaik, B.A., special Officer and Ex-Officio Deputy Secy.
To : The District Magistrate, Cuttack. Dated 4th February, 1952.
Sub : Resignation of Sri Jadumani Behera, Councillor, Cuttack Municipality.
Ref : Your letter No. 551-Elec., dated 18-12-51
Sir,
I am directed to refer to your letter cited above, and to say that Sri Jadumani Behera has tendered his resignation of the office of the Councillor, Cuttack Municipality, on 18th December 1951, before Government Notification No. 7348-L.S.G., declaring him elected as a Councillor of Cuttack Municipality was issued on 27th December, 1951. He should tender his resignation after he is declared elected, in order to have a proper cause of action for bye-election, a fresh resignation letter from Sri Jadumani Behera should be obtained and be accepted by the Municipal Council.
Yours faithfully,
(Sd) D. N. PATNAIK,
Special Officer, and Ex. Officio,
Deputy Secretary to Govt.
Memo. No. 405-Elec.
Copy forwarded to the Chairman, Cuttack Municipality, for information and necessary action.
(Sd) for District Magistrate, & Returning
Officer, Cuttack Municipality.
Memo. No. 536/Dt. 17.2.52
Copy forwarded to Sri Jadumani Behera for information and necessary action. He is requested to submit a fresh resignation letter as early as possible.
(Sd) N. K. PATRA,
14-2-52
Chairman, Cuttack Municipality.
3. A copy of this letter was forwarded by the District Magistrate to the Chairman who in his turn, forwarded it to opposite party No. 1, Jadumani Behera, with a request to submit a fresh resignation letter as early as possible. Admittedly opposite party No. 1, Jadumani Behera has not tendered any fresh resignation. He has appeared before us on notice through his advocate, Sri G. C. Das, and has not offered to resign again even now.
4. The question raised in the case is whether the view on which the Deputy Secretary, L.S.G. Department, purports to have acted, viz., that the resignation tendered and accepted before the Government Notification dated 27.12.51 was issued is invalid, is correct, and whether in view of the events that have happened, the opposite party No. 1 still continues to be a member of the Municipal Council of Cuttack. On the footing that he still so continues, the Chairman has issued a notice to the said Jadumani Behera of the budget meeting of the Council fixed for 5 P. M. on 22.3.52, vide Annexure 'F'. It is in consequence of this that the applicant has come up to us with this application on 19.3.52.
5. I must, at the outset, state a fact which was noticed by us suo motu, after we admitted this application on the 20th instant and fixed up the case for final disposal the very next day, in view of the alleged urgency of the matter. That fact is that this application, which substantially challenges the view on which the Deputy Secretary, L.S.G. Department acted, in writing his letter dated 4th February, 1952, to the District Magistrate and which was available in the Municipal Office by 14.2.52, has been made more than one month thereafter and there is not a word in the application explaining this delay. The application itself gives an indication that the opposite party No. 1 has been permitted by the Chairman to Continue in his seat and to act as a Municipal Councillor at some meetings of the Council, held after the acceptance of his resignation by the said Council, vide para. 14, sub-para. (2) of the application.
If these facts had been specifically brought to our notice at the time when we admitted this application and fixed up the case for final hearing, we might have been inclined to consider whether we should have agreed to take up this matter so urgently out of its turn in preference to other important and pending work of the Court. Indeed, such delay and presumably the apparent acquiescence of the petitioner for over a month might have inclined the court even to refuse to entertain the petition. But since we have taken up the matter for final disposal, and have heard full arguments, we do not think that we should reconsider at this stage whether we should not have declined to admit this application nor need we now refuse relief, on this ground.
We would however note that this is not to be treated as a precedent and we must emphasize that the duty of the Councillor, the petitioner in such cases is to state clearly in the affidavit all matters by way of explanation for any apparent delay or acquiescence and that he has a duty to specifically bring such matters to the notice of the Court when! making the motion.
6. Another matter to be noticed at this stage is the preliminary objection raised by the learned Advocate-General appearing on behalf of the opposite party Nos. 3 and 4, the District Magistrate and the Deputy Secretary L.S.G. Department. He points out that the application made to us in this case is supported by the affidavit not of the petitioner himself, but of the advocate for the petitioner and of the advocate's clerk in charge of the case. He contends that in all such applications it is essential that the affidavit in support of the petition should be signed by the petitioner himself and that in the absence of such affidavit, the application ought to be rejected.
In support of that contention, he cites the case in 'RATAN CHANDRA v. ADHAR BISWAS', 56 Cal W N 302 at p. 304, following the cases in 'SURENDRA NATH DAS v. STATE OF WEST BENGAL', 55 Cal W N 255; 'P. K. BANERJEE v. L. J. SIMONDS', AIR 1947 Cal 307 at p. 317 and 'R. v. KENSINGTON INCOME-TAX COMMISSIONERS', (1917) 1 K B 486 at p. 509. This is, undoubtedly, the correct practice in such cases. But here also, this defect should have been brought to our notice when matter came up to us for admission on previous notice, given by the applicant to the Advocate-General, which has been accepted by him and before we posted the case for final disposal. These writs are comparatively new to this Court and the practice in respect thereof is not properly understood and has not got sufficiently crystallised. Under these circumstances, while we should insist upon the observance of the correct practice and procedure in such matters, and while it may be true as contended that we are entitled even now to dismiss this application on the preliminary objection raised, we think, we have the discretion not to do so in this case, having regard to the consideration that all the facts alleged, in the affidavit are matters of record which are indisputable and undisputed.
7. We accordingly do not propose to give effect to this preliminary objection, but we would once again note that this is not to be treated as a precedent. On the other hand, we would take the occasion to emphasize the duty of the counsel on both sides to bring forward all such relevant materials and objections at the earliest possible stage. We proceed, therefore, to consider the question raised in this case on its merits.
8. In considering the case on its merits, I may as well dispose of another matter shortly. The petitioner in his application has challenged the acts of the Deputy Secretary, L.S.G. Department by way of issue of a delayed Government Notification dated 27-12-51, relating to the declaration of the opposite party No. 1 as duly elected, and the delayed letter dated 4th February, 1952, to the District Magistrate informing him that the resignation of the opposite party No. 1 dated 18th December 1951, was invalid, as constituting a 'fraud on the statute'.
In view of the fact that the notification of the Local Self-Government Department following this Court's order declaring opposite party No. 1 as a councillor was issued, so late as 27th December, 1951 after the copy of the letter of resignation of opposite party No. 1 dated 18th December, 1951, was received by the Deputy Secretary, and also probably after a copy of the Chairman's letter dated 26.12.51 intimating acceptance thereof by the council was so received, there may have been some room for imputation of mala fides when the petition used the term 'fraud on the statute'. But learned counsel for the applicant expressly disclaims any such imputation of positive mala fides and explains that what he alleged in the petition was meant only to convey a 'legal and technical' fraud. In view of this explanation, it is unnecessary to consider whether the non-acceptance of the resignation as valid by the Local Self Government Department, is vitiated by any mala fides, as the only question raised, is a pure legal issue depending on a correct interpretation of the relevant provisions of the Act and the Rules.
9. The contention of the petitioner is that opposite party No. 1 became a validly elected councillor either from the moment this Court declared the result in his favour on 3rd December, 1951, in M.J.C. No. 98 of 1951, or at any rate, from the date the District Magistrate of Cuttack as Election Officer issued the notification dated 4-12-51 and that accordingly when he sent his resignation on 18-12-51, and the same was considered and accepted by the council at a validly constituted meeting on 22-12-51, he ceased to be a councillor and had vacated his office.
He urges that there is no warrant for the view put forward in the letter of the Deputy Secretary, to the District Magistrate, that the opposite party No. 1 can only resign after the issue of the Govt. Notification dated 27-12-51 or after its subsequent publication in the Orissa Gazette dated 11-1-52. Counsel for the petitioner relies on Section 43 of the Orissa Municipal Act which is in the following terms : --
'A councillor, other than Chairman and Vice-Chairman, may resign his office by writing under his hand addressed to the Chairman who shall forthwith lay such notice of resignation before the municipal council and on the resignation being accepted, the office shall become vacant.'
10. On the other side, the learned Advocate General contends that before this section can apply to the facts of the case, the opposite party No. 1, Jadumani Behera, must be shown to have held the office of a councillor. He contends that only a councillor who has held the office can resign and that no person who is merely declared to have been elected as a Councillor can be treated as a councillor having the office until the mandatory provision relating to the publication of the names of the elected councillors as provided in Section 39 of the Municipal Act is complied with.
11. The question is which view is correct? It is necessary for this purpose to consider the scheme of the Act and the relevant rules relating to elections of Councillors, under Section 8 there shall be established for each Municipality, a body of councillors, to be called the Municipal Council, having authority over the Municipality, under Section 9 the councillors of a Municipality shall be a body corporate by the name of the Municipality by reference to which it is known and shall have perpetual succession.' under Section 10, all the councillors of a Municipality shall be elected in the manner laid down in this Act and the prescribed rules, under Section 12 (1), there shall be a general election of councillors at the end of every fifth year.
The rules made under the Act contain elaborate provisions as to how elections are to be conducted. Under Rule 2, the District Magistrate or any person appointed by him is the Election Officer. (In the present case, it may be noted that the District Magistrate of Cuttack, was himself the election officer). The relevant rules relating to the stage of voting are Rule 30 and Rules 33 to 59 of the Municipal Election Rules; of these, it is sufficient to note only a few for the present purpose. Under Rule 53 of the Election Rules, it is provided as follows :
'After the Election Officer has completed the scrutiny and counting of votes, he shall prepare a return of the result of the polling in Form XVII and shall subject to the provisions of Rule 57 declare that the candidate or candidates to whom most valid votes have been given has or have been duly elected.'
12. Under Rule 58, the Election Officer shall without delay report the result of the election to the Magistrate of the District and shall prepare and certify a return setting forthwith various particulars of which No. (d) is the 'name of the candidate elected'.
13. Rule 59 provides for the publication of the results of the election in the following terms :
'The Magistrate of the district shall forthwith cause the names of the councillors in the municipality reported to him under Sub-rule (2) of Rule 30 and under Rule 58 to be published in his office and in the office of the municipality and shall communicate a copy of the lists of the names so published to the State Government for subsequent publication in the Orissa Gazette.'
Form No. XVII of the Election Rules shows the exact return which the Election Office has to make under Rule 53. The return contains inter alia a, statement as to the names of the candidates and the number of valid votes etc., and ends with a statement signed by the Election Officer as follows :
'I hereby declare that the following candidates have been duly elected for Ward No.....'
14. The stage next after that, relevant for our purpose is that which is provided in Section 39 of the Act itself and is as follows : 'The names of the councillors and of the Chairman and Vice-Chairman shall be published in the Qazette.'
15. Learned Advocate-General contends that the whole of the election process is complete only after this last step contemplated by Section 39 is completed. In passing, it may be noted that this stand is somewhat different from what was taken by the Deputy Secretary in his letter, which refers to the issue of the Government notification and not the later Gazette Notification thereof as the material step. In support of his argument the learned Advocate-General urges that the steps contemplated in Rule 59 and, Section 39 are as mandatory as that in Rule 53.
He also points out that Section 47 (1) provides for the Chairman and Vice-Chairman being elected from, amongst the councillors at the first meeting of the Municipal Councillors and that Sub-section (2) of Section 47 provides that such election shall take place within 30 days from the date of publication of the names of councillors in the Gazette under Section 39. His contention is that the Municipal Councillors become a corporate body only after the Chairman and Vice-Chairman are elected which can only be at the first meeting of the Municipal Council. This, in terms, is to be held within 30 days from the date of publication in the Gazette under Section 39 of the Act. He urges therefore that the publication in the Gazette is a link in the chain of events which go to make up the Municipal Council as a corporate body and that no councillor can be said to have held the office until that corporate body comes into existence by the election of the Chairman and the Vice-Chairman.
In further support of his argument, he draws our attention to Sub-sections (1) and (4) of Section 41 of the Act which are as follows :
'(1) Save as otherwise provided in this Act, a councillor elected at a general election, shall hold office for five years commencing from the date of the general election; and
(4) The terms of five -years, mentioned in Sub-section (1), shall be held to include any period which may elapse between the expiration of the said five years and the first meeting of the newly elected councillors at which a quorum shall be present.'
Relying on Section 41 (1) & (4), it is urged that the old councillors continue in office till the first meeting with quorum of the newly elected councillors is held, implying that the latter do not come into the office till then. In the first instance, it is to be noticed that there is no provision in the Act clearly specifying and indicating that a councillor has not the status of a person holding the office of the elected councillor until his name is published in the Gazette. The absence of any such positive provision is all the more significant having regard to the fact that in statutory provisions relating to other election (sic) is not enough, but (that the person so declared has to accept the office or take an oath and so forth, before entering on the office.
Prom the mere fact that upto the stage of the holding the first meeting of the Council at which the Chairman and the Vice-Chairman are elected, a series of steps are provided for, viz., (1) the declaration of election by the Election Officer, (2) the publication thereof by the District Magistrate in the Municipal Office and in the Office of the Election Officer, and (3) the later publication thereof in the Orissa Gazette, it does not at all follow that steps (2) and (3) constitute, such essential links, in the chain of election itself that until they are taken, step (1) remains in abeyance. There are, on the other hand, quite a number of provisions in the Act and in the rules showing that the effect of the declaration of election is not kept in suspense until the publication in the Gazette. One of the provisions in this behalf is Section 19 of the Act which prescribes a period of 15 days after the date on which the result of the election is announced for the presentation of an election petition.
There can be no doubt that the word 'announced' in this section refers to the 'declaration of the election by the Election Officer', under the relevant rules. This important provision indicates that declaration becomes effective from the date lit is made. Rule 56 of the Election rules provides that if any person has been elected for more wards than one, he shall by notice in writing signed by him intimate to the Election Officer, the Ward for which he chooses to serve. Such intimation shall reach the Election Officer within twenty four hours at the latest of the declarations of the result of the Elections of the wards for which such person stood as a candidate. Section 35 (b) of the Act provides that a complaint relating to any offence committed under Sections 28, 30, 31, 32, 33 and 34 of the Act, in relation to any election has to be made within 14 days of the date of declaration of the result of the Election. These Rules also show that the declaration takes effect at once. Section 37 of the Act is another important provision and enjoins that no court shall grant an injunction to prohibit a person declared to have been duly elected under the Act from 'taking part in the proceedings of the Municipality' of which he has been elected a councillor.
This definitely indicates that a person who has been declared elected is clothed with the right to take part in the proceedings of the Municipality and is hence in office from that date. It does not appear from this section that this right necessarily depends upon any previous publication in the Gazette. There are thus quite a number of provisions in the Act and the Rules which clearly show that the declaration of the Election of the Municipal Councillors carries with it, certain definite effects and it cannot be said that until the result of the Elections are published in the official Gazette, the declaration of Election is of no effect whatever. It does not also appear to be correct to assume as the learned Advocate General has assumed in his argument before us that the Council as a corporate body comes into existence only after the Chairman and Vice-Chairman are elected at the first meeting with a quorum. Section 8 of the Municipal Act merely states that the body of councillors for each Municipality shall be called a Municipal Council, and Section 9 says that the councillors of the Municipality (sic) and there is no provision that until the Chairman and the Vice-Chairman are elected, the Councillors do not form a body corporate.
It appears therefore that the body corporate comes into existence the moment all the councillors elected at the first General Election are declared elected by the Election Officer himself. It cannot therefore be predicated that the councillors so declared elected do not hold the office until the publication of the results of the Election as prescribed under Section 39 of the Act. There is still another important provision which indicates that the publication prescribed under Section 39 of the Act is not a 'sine qua non' for the coming into office of the various persons mentioned therein. For instance, Section 48 of the Act deals with the vacation of office by Chairman and Vice-Chairman, Sub-section (1) of the section provides that the Chairman or the Vice-chairman shall be deemed to have vacated his office on the expiry of his term as a councillor of the Municipality or on his otherwise ceasing to be such councillor. Sub-section (3), however, says that not-Withstanding anything contained in Sub-section (1) the Chairman and Vice-Chairman shall continue to hold office until the next General Election of councillors of the Municipality and for such further period as may elapse between the date of the general election and the first meeting of the newly constituted municipality held under the provisions of Sub-section (1) of Section 47, and they shall then vacate office.
Thus, it is provided that the outgoing Chairman and the Vice-Chairman vacate their office at the first meeting where the new Chairman and Vice-Chairman are to be elected and it would seem to follow by implication that the new Chairman and Vice-Chairman come to office only after publication in the Gazette; there is bound to be a gap in the office which could not have been contemplated. This provision in Section 47 seems to me to indicate clearly that the declaration of the election in the Gazette is not a condition precedent for the Chairman and the Vice-Chairman being clothed with the office after their election. If so, it cannot be said that the publication in the Gazette provided by the same section in respect of councillors has a different effect and import. It appears to me therefore prima facie having regard to all the above provisions that the status of a Municipal Councillor as a person holding the office as a Councillor does not depend upon the publication of the result of the election under Section 39 of the Municipal Act.
16. The matter may be looked at in a different way also. As already stated, there are three stages contemplated by the Act and the Rules, (i) the declaration of the election by the election officer himself under Rule 53, Election Rules; (ii) publication of the result under Rule 59 of the Rules by the District Magistrate in his office and in the office of the Municipality; and (iii) a later publication of the names of the municipal councillors under Section 39 of the Act. It has to be noticed that while the publication under Rule 59 is prescribed to be done 'forthwith' what all is provided under Section 39 of the Act is a mere subsequent publication. Now it may be possible to suggest as a matter of construction that either of these publications is an essential process for the completion of the election of the councillors If it could be shown that the District Magistrate or the Govt. had some kind of further responsibility with reference to the declaration of Elections by the election Officer under Rule 53 by the exercise of some residuary or extraordinary powers in this behalf. But there is no provision at all in the Act and none has been brought to our notice, under which either the District Magistrate or the Government can interfere with the election.
On the other hand while Section 398 (1) of the Act reserves large powers of interference in the affairs of a Municipality to the Government it is specifically provided by proviso thereto that nothing in the sub-section shall enable the State Government to set aside any election which has been held. Declaration of election of a councillor cannot therefore be interfered with by the District Magistrate or the Govt. in any manner and the only authority that can interfere is the tribunal, viz., the District Judge, as provided in Section 21 of the Act. There seems to be therefore no plausible reason for not giving full effect to the declaration of the election of a councillor from the date it was made.
It cannot accordingly be held that the publication under Section 39 of the Act is a condition precedent for a councillor duly elected becoming clothed with the office of the councillor. If the Act intended any such result, it should have clearly stated so. I am therefore inclined to hold prima facie that the publication prescribed either in Rule 58 of the Election Rules or in Section 39 of the Act serves no other purpose than what it in terms stated, namely, publication, i.e., giving publicity to the declaration and serving as uncontestable evidence of the fact that a particular person has been duly declared elected.
17. The only difficulty, if at all, in the way of the above view is the provision of Section 41 (4) of the Act which does seem to indicate that in respect of general elections held once in five years, the old councillors continue to be in office until the first meeting of the newly elected councillors is held with a quorum. I may notice here, that strictly speaking the argument based on Sub-section (4) of Section 41 does not apply to the facts of this case because admittedly the Municipal Council of Cuttack Municipality was suspended in 1946 and remained so until the present council was formed in 1951 by the new elections under the Orissa Municipal Act of 1950. While it may be that the special officer appointed on supersession of the Municipal Council was exercising all the functions of the Council, or of the councillors, there is no impediment as a fact arising from the provisions of Section 41 (4) in the way of the new councillors declared elected in 1951 to the Cuttack Municipality becoming clothed with office forthwith.
However, I do not wish to base my view as to the result of this case on these special facts. There is undoubtedly force in the contention that in the normal case, so far as the elected councillors at a general election are concerned, their coming into office is contemplated by the Act only after the publication of the results of the elections in in the Gazette as an implication from Sub-section (4) of Section 41. The argument advanced by the learned Advocate-General may be plausible in respect of such elections.
It may on the other hand be equally plausible to contend that the provision of Sub-section (4) of Section 41 is a very special provision enacted with a view to prevent the interruption In the continuance of the functions and the work of the Municipality and that it does not import necessarily the idea that the persons duly declared elected at such general elections do not get clothed with the office at the very moment of the declaration of their election or that such persons cannot resign their office before the publication of the results in the Gazette or before the first meeting of the councillors with a quorum. I would prefer not to express any final opinion on this matter, which concerns the general election, until such question in terms, arises.
18. The learned Advocate-General however, urges that the case of the opposite party No. 1 with reference to the validity of his resignation under Section 43 of the Act is to be considered on the footing of his election being part of the first general election, to the Cuttack Municipality under the Orissa Municipal Act of 1950. He puts his argument this way. He urges that what the Tribunal does when it decides election disputes and gives relief as provided in Section 24 (1) (b) is to declare a candidate to have done (sic) the Election Officer should have done under Rule 58 of the Election Rules, if he had given the correct decision. He urges that this Court by its order dated 3rd December 1951, did what the Tribunal should have done, that is, in effect, what -the Election Officer should have done under Rule 56. He accordingly argues that the result of the order of this Court is merely to put the whole matter back, so far as opposite party No. 1 is concerned, to the stage contemplated by Rule 56 of the Election Rules and thus to make it part of the general elections, and consequently to carry with it the requirement of all the subsequent steps upto the stage of the holding of the first meeting of the councillors with a quorum under Section 41 (4).
It is urged that all these steps are to be repeated before he can be said to be clothed with the office. This argument though ingenious does not appear to me to be sound. While it may be correct to say that what this Court did on the application to issue a writ in M.J.C. 98/51 is to pass an order which the Tribunal should have done under Section 24 (1) (b), it does not follow that what the Tribunal does is what merely the Election Officer did or should have done. For instance, Sub-section (2) (a) of Section 24 says :
'If the Tribunal finds the election of any person was invalid, it shall either (a) declare a casual vacancy to have been created, or (b) declare another candidate to have been duly elected.'
If it did the former alone, and not the latter, there can be no question of relating back the order of the Tribunal to the date when the Election Officer declared the result of the election.
For the first contingency it is prescribed that the Tribunal shall direct the Magistrate to take proceedings for filling in the vacancy. Besides, Section 27 of the Act says that where a candidate who has been elected to be a councillor of a municipality is declared by the Tribunal not to have been duly elected, acts done by him in execution of the office before the time when the decision is certified to the Municipality, shall not be invalidated by reason of that declaration. This section clearly is applicable with reference to both kinds of reliefs that a Tribunal may give under Section 24 (2) either under Clause (a) or Clause (b). To my mind, this provision in Section 27 indicates that the theory of relating back the order of the Tribunal to the date the Election Officer declares the result of the Election of a candidate, cannot be imported, to its logical conclusion. Section 27 of the Act clearly indicates that the office of the person in whose favour an invalid declaration of election was made by the Election Officer, terminates, the moment the order of the Tribunal is certified to the Municipality and hence it would follow that the person declared by the Tribunal to have been elected comes into office from that date.
19. It appears to me quite clear that in the present case, the declaration of election granted by us in favour of opposite party No. 1 by our order dated 3rd December, 1951, is completely free from any difficulties of construction arising with reference to Section 41 (4) of the Act. At the time of our declaration, there was a virtually full-fledged Municipal Council of the Cuttack Municipality functioning. It appears to me to follow that the opposite party No. 1 became clothed with office of the municipal councillor the moment this Court gave a declaration in his favour. He was competent to resign his office in terms of Section 43 of the Orissa Municipal Act. He has done so within 14 days after our order was made and that resignation has been accepted, by the Municipal Council and by virtue of the peremptory provision of Section 43 the office held by him falls vacant from that date. I can see no way at all on the facts of this case to accept the position that until the much later publication of the same in the Gazette on 11-1-52, our order is merely in suspense and does not clothe the opposite party No. 1 with the office of the councilor.
20. We must therefore hold that opposite party No. 1 Jadumani Behera has ceased to be a councillor from the date when his resignation was accepted by the Municipal Council on 22-12-51, and that there has arisen a vacancy which has to be filled up by fresh election. It is accordingly ordered that the opposite party No. 1 be declared to have vacated his office and that a casual vacancy has arisen which has to be duly filled.
21. This application is allowed with costs.
Narasimham, J.
22. I agree.