Holding

The elections held on June 10, 1979 are valid because the stay order kept the newly included areas out of the municipality, so delimitation was not required, but interim representation must be provided under s.5(5) of the Punjab Municipal Act.

Summary

The State of Punjab, under the Punjab Municipal Act, 1911, notified the inclusion of eight local areas into Sunam Municipality. A stay order was later placed on this notification, preventing the areas from being officially added. Despite the stay, the State, compelled by a statutory deadline, held municipal elections on June 10, 1979 based on the pre‑inclusion limits of 15 wards. The petitioners challenged the elections, arguing that delimitation of wards and fresh electoral rolls were required for a valid election. The Supreme Court held that while delimitation is a sine qua non for elections after a change in municipal limits, the stay order meant the new areas were not legally part of the municipality at the time of the election, rendering the elections valid; however, the Court directed interim representation for the excluded areas under s.5(5) of the Act. The appeal was dismissed.

Issues considered

Whether the State Government may hold municipal elections without delimiting wards and preparing fresh electoral rolls when the municipal limits have been extended.
Whether the elections held on June 10, 1979 are valid despite the stay order on the inclusion notification.
Whether the vacation of the stay order on April 1, 1980 invalidates the elections already conducted.

Legislation cited

Delimitation of Wards of Municipalities Rules, 1972
Election Rules, 1952
Punjab Act 18 of 1978 (as amended by Punjab Act 2 of 1979)s. proviso to s.13
Punjab Gram Panchayat Act, 1952
Punjab Municipal Act, 1911s. 11, s. 13, s. 5, s. 7

Subjects

municipal electionsdelimitation of wardselectoral rollsstay orderrepresentationPunjab Municipal Actvalidity of election

Judgment

A

340

ATMA SINGH & ORS.
B v.
STATE OF PUNJAB & ORS.

April 2, 1981

[Y.V. CHANDRACHUD. C.J., A.P. SEN AND
c V.BALAKRISHNA ERADI, JJ.]

Punjab Municipal Act, 1911, read with Election Rules, 1952 and Delimitation
of Wards of Municipalities Rules, 1972-State Government notifies inclusion of
certain local areas within the limits of Sunam Municipality under sub-section (3) of
section 5 of the Act-Operation of the notification stayed by the High Court and,
ther~fore, the State Government without reconstituting the Municipality into new
n wards held elections on the basis of the old municipal limits in view of the obliga-
tory proviso to sub-section (3) of section 13 of the Act inserted by Punjab Act IO
of 1978 as amended by Punjab Act 2 of 1979-Propriety of the action of the State
to hold elections in the municipality without de/imitation of wards und preparation
offresh electoral rolls and validity of the elections.

In exercise of their powers under sub-section (3) of section 5 of the Punjab
E Municipal Act, 1911, the State Government by its Notification dated August 2,
1976 directed inclusion, in Sunam Municipality, of eight local areas including
Moranwali Gram Panchayat, which challenged the validity of the said notifica-
tion by a writ petition filed before the High Court and obtained stay of
operation.

Under the Election Rules of 1952 and the Delimitation of Wards of Muni-
F cipalities Rules, 1972, whenever there is a change in the limits of the municipali-
ty the State Government cannot proceed to hold election of councillors without
delimitation of the municipality into wards. However, since proviso to sub-
section 3 of section 13 of the Act, inserted by Punjab Ace 18 of 1978 as amended
by Punjab Act 2 of 1979 made it obligatory for the State Government to hold the
election before June 30, 1979, along with those of the 42 other municipalities the
election of the councillors of the Sunam Municipality was also held on June I 0,
G 1979 on the basis of the old municipal limits, that is, from the existing 15
wards.

On June 23, 1979 the appellants who seek to represent about 1,000 voters
from the local areas newly added to the municipal limits, filed a writ petition in
the High Court challenging the election as null and void on the ground that
H there was no delimitation of wards and no fresh electoral rolls were prepared.
The High Court by its order dated July JO, 1979 declined to set aside the elections
held, but directed that the local areas be given representation under sub-section(5)
ATMA SINGH V. PUNJAB 341

of section 5 of the Act. Hence the appeal after obtaining special leave of the A
.. Court .

Dismissing the appeal, the Court

HELD: I. The State Government without reconstituting a municipality
into new wards cannot proceed to hold an election of councillors, when there is
an extension of the municipal limits. [346 C] 8
2. The whole purpose of delimitation of municipality into wards is to
ensure that every citizen should get a fair representation in them unicipalities.
When a municipality in reconstituted by the inclusion of any local area within
the limits of a municipality under sub-section (3) of section 5 or by the exclusion
of any local area from the limits of a municipality under section 7, that is, when
there is an alteration of the limits of the municipality, there must of necessity be
a division of the reconstituted municipality into new wards without which the
c
elections cannot be held. There can be no:'.dis-enfranchisement of part of the
~- .
electorate of a municipality.
- [345 C-D]

3. But, in the instant case, the said principle could not be applied due to
the stay order passed by single Judge of the Punjab High Court which was in
force from August 2, 1978 to October 23, 1978 and thereafter till April 1, 1980
consequent to the order of stay of dispossession by the Division Bench, dated
D
December 19, 1978 in the Letters Patent Appeal preferred by the Gram Pancha-
yat, Moranwali. When a local area sought to be •brougb.t within the limits of
the municipality by the issue of a notification under sub-section (3) of section 5
was kept out of such limits by reason of the stay order passed by the Division
Bench there could, obviously, be no delimitation of the municipality into new
wards. [346 C, D; 347 B, A] -
E
4. To contend that with the di>misnl of the wcit P"tition on October 23,
1978, the impugned notification was brought into effect and, therefore, the State
Government could not proceed with election without delimitation of wards and
preparation of fresh electoral rolls is incorrect. It is equally incorrect to say that
with the vacation of the stay by the dismissal of the Letters Patent Appeal on
April t, 1980 the whole election would b~ invalidated. [346 F, 347 F]
F
5. The Elections held on June 10, 1979 were valid and the councillors
elected [are [enti.tled to ,run their full term or live years as provided in] section
13. The State Government acted with the best of intentions in deciding to hold
the elections. The State Governmont had no other alternative but to hold the
election of the councillors on the basis of the existing limits of the municipality,
that is, from the existing 15 wards due to the amendmont of proviso to sub-
section (3) of section 13 of the Act by Punjab Act 2of1979 which made it 'obli- G
gatory for the State Government to hold the elections before Jun; 30,
1979. [347 E, D]

Bhaichandbhai Maganlal Shah v. Th" State of Gujarat and Ors., 8 Guj. L.R.
210,approved. IJ
6. In view of the fact that a large number of inhabitants of the local areas
brought within the municipal limits under sub-section (3) of section 5 of the Act,
342 SUPREME COURTS REPORTS [198 I] 3 S.C.R.

A who were otherwise eligible to be enrolled as voters but for the stay by the High
Court, have thereby been deprived not only of their valuable right to vote at the
election but also the right to contest as a candidate for election as a councillor
from any of the wards of the municipality or to the office of the President or
the Vice-President, the Court directed ; (i) that the local areas included in the
municipality should be formed into a ward or wards and representation given to
them under sub-section (5) of section 5 of the Act; (ii) that the term .of the coun-
B cillors so elected from such local areas shall be co-terminus with the term of the
councillors already elected from the existing 15 wards and (iii) that this shall be
a purely interim arrangement necessitated by the somewhat unfortunate stay
order passed by the High Court and that obviously it cannot extend beyond the
term of the present council. (347 G, 348 BJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1958 of
c 1980.

Appeal by Special Leave from the Judgment and Order dated
20th July 1979 of the Punjab and Haryana High Court in Civil
Writ Petition No. 2135/79.

D P. P. Rao and C. M. Nayar for the Appellants.
0. P. Sharma and M M. Dhillon for Respondents Nos .. 1-5.

S. M. Ashri & G. K. Bansal for the other appearing Respon-
dents.

E The Judgment of the Court was delivered by

SEN, J.. This appeal by special leave from a judgment of the
Punjab & Haryana High Court, raises a question of some complexity.
The question is when there is a notification issued under sub-s. (3)
of s. 5 of the Punjab Municipal Act, 1911, for inclusion of certain
F local areas within the limits of a municipality, whether it is per-
missible for the State Government to hold elections in the munici-
pality without delimitation of wards and preparation of fresh elec-
f
toral rolls. It arises under the following circumstances.

In exercise of their powers under sub-s. (3) of s. 5 of the
G Punjab Municipal Act, 1911 (hereinafter referred to as 'the Act'),
the State Government of Punjab by notification dated August 2,
J976, directed inclusion of certain local areas. The local areas so
included are : (I) Moranwali Panchayat Area, (2) Grain Market
Area, (3) Guja Peer Basti, (4) Jakhal Road, (5) ITI Area, (6) BOO
H Block, (7) Tehsil Court Area and (8) Thei Area. The Gram
Panchayat, Moranwali challenged the validity of the said notification
by a writ petition filed before the High Court. A learned Single
ATMA SINGH v. PUNJAB (Sen, J.) 343

Judge granted an ad interim stay staying the op~ration of the im- A
pugned notification. The writ petition was dismissed by the learned
Single Judge on October 23, I 978. Thereupon, the Gram Pa.nchayat
y preferred a Letters Patent Appeal and prayed for grant of stay of
operation of the impunged notification. On December I 9, I 978,
a Division Bench passed the following order :
B
Admitted. Stay dispossession ad interim. Notice
regarding stay.

It is common ground that eventually the stay was confirmed by the
Division Bench and remained operative till April 1, 1980 when the
Letters Patent Appeal was dismissed. C
In the meanwhile, the State Government decided to hold the
elections of councillors of the Sunam Municipality on the basis of
the old municipal limits, i.e. from the existing 15 wards, along with
those of the 42 other municipalities, since proviso to sub-s. (3) of
s. 13 of the Act, inserted by Punjab Act 18 of 1978 as amended by D
Punjab Act 2 of 1979 made it obligatory for the State Government
to hold such elections before June 30, 1979. Accordingly, the
Deputy Commissioner issued a notification on April 6, 1979 under
r. 3 of the Election Rules, 1952, specifying that the elections in the
municipality shall be held on June JO, 1979. On June 23, 1979,
i.e. after the whole process of election was over, the appellants, who E
seek to represent about I 000 voters from the local areas· newly
added to the municipal limits, filed a writ petition in the High
Court challenging the election as null and void on the ground that
there was no delimitation of wards and no fresh electoral rolls were
prepared. The High Court, by its order dated July 20, 1979, dec-
lined to set aside the elections held, but directed that the local areas F
be given representation under sub-s. (5) of s. 5 of the Act.

In support of the appeal, there is a two-fold contention advanc-
ed. In the first place, the submission is that when a local area is
included within a municipality, elections cannot be held without
delimitation of wards and preparation of fresh electoral rolls; and .. G
secondly, the submission is that, in any event, with the vacation of
stay, the election was invalidated. The first of these submissions
is unexceptionable, but it does not arise, and the second appears to
us to be wholly devoid of substance.
H
Sub-s. (5) of s. 5 of the Punjab Municipal Act, 1911, which is
relevant for our purposes, reads as follows :
344 SUPREME COURT REPORTS [ l98J 3 S.C.R.

A (5) Whefl any local area included in a municipality
under sub-section (J) is a Sabha area, or a part thereof
under the Punjab Gram Panchayat Act, 1952, representation
to the inhabitants of the local area so included on the
committee of the municipality, in which local area is inclu-
ded, shall be given in the prescribed manner.
B
The Act does not prescribe the manner of giving representation
to the inhabitants when any local area included in a municipality
under sub-s. (3) of s. 5 is a Sabha area, unlike that in the case of
a municipality or a notified area for which an express provishn is
c made in sub-s. (6) thereof. The matter, therefore, falls to be
governed by the Election Rules, 1952 and the Delimitation of
Wards of Municipalities Rules, 1972, framed by the State Govern-
ment in exercise of their powers under s. 240 (I) (b) and (c) and
s. 258 of the Act.

Whenever there is a change in the limits of a municipality, the
D State Government cannot "proceed to hold election of councillors
without delimitation of the municipality into wards. The delimita-
tion of wards, a delicate and important task, is entrusted to a
Delimitation Board constituted. under r. 3 of the Delimitation of
Wards of Municipalities Rules, 1972 and under r. 4 thereof it is
the duty of the Delimitation Board to effect a re-division of a
E municipality. That rule reads thus :

4. Functions of the Bo(;rd- It shall be the duty of the Board:--

(i) to divide the Municipality into such number of wards as
may be necessary, having regard to the number of elected
members prescribed by the State Government, for the
F
Committee, and the number of seats reserved for mem-
bers of the Scheduled Castes; and

(ii) to re-adjusf the wards as and when the limits of the
Municipality are altered or there is increase in population
G of the Municipality or there is abnormal variation in
population or voting figures of some of the wards of the
Municipality, which requires, such re-adjustment.

In the delimitation of wards, the Board must observe the principles
H laid down inr. 6, namely, (1) all wards shall, as far as practicable,
be geographically compact areas, and in delimiting them due regard
shall be had to physical features, existing boundaries of administra-
ATMA SINGH v. PUNJAB (A.P. Sen, J.) 345

tive units, if any, facilities of communication and public conveni- A
ence; (2) wards in which seats are reserved for the Scheduled Castes
shall be located, as far as practicable, in those areas where the
proportion of their population to the total population of the muni-
cipality is the largest; arid (3) each municipality shall be divided into
wards in such manner that the population of each ward, as far as
practicable, is the same throughout the municipality, with a variation B
upto IO per cent above or below the average population figures.
While making a re-division, it may not be possible to achieve
mathematical perfection, but there must definitely be a substantial
compliance with the requirement that every person should have an
equal vote.
c
The whole purpose of delimitation of municipalities
into wards is to ensure that every citizen should get a fair represen-
tation in the municipalities. When a municipality is re-constituted
by the inclusion of any local area within the limits of a municipality
under sub-s. (3) of s. 5 or by the exclusion of any local area from
the limits of a municipality under s. 7, i.e. when there is an altera- D
tion of the limits of the municipality, there must of necessity be a
division of the re-constituted municipality into new wards without
which the elections cannot be held. There can be no dis-enfran-
chisement of a part of the electorate of a municipality. The question
was dealt with at some length by the Gujarat High Court in
Bhaichandbhai Magan/al Shah v. The State af Gujarat & Ors.(') and E
it was observed :

It must follow logically and inevitably from this pro-
position that the constitution of wards dividing the whole
of the municipal district is a sine qua non of a valid election.
If no wards at all are constituted in the municipal district, F
the machinery of election cannot go through and equally
the machinery of election cannot go through if wards are
constituted in respect of a part of the municipal district
and the other part is not divided into any ward or wards.
In such a case there would be lists of voters for the wards
G
which are constituted out of a part of the municipal district
but there would be no lists of voters so far as the other
part of the municipal district is concerned and no one from
that part would be qualified to vote or to stand as a candi-
date for the election and no Councillors being elected by
H
(1) 8 Guj. L.R. 210.-
346 SUPREME COURT REPORTS [1981) 3 S.C.R.

A that part, there would be no representation of that part on
the municipality. Where such a situation arises, it is difficult
to see how the Municipality can be said to be a Munici-
pality for the whole of the municipal district within the
meaning of s. 9.

B We approve of the view taken by the Gujarat High Court.

There can be no dispute with the principle that the State
Government without re-constituting a municipality into new wards,
cannot proceed to hold an election of councillors, when there is an
extension of the municipal limits, but the difficulty is about the
c applicability of that principle to the facts of the present case. There
is no denying the fact that the effect of the stay order passed by the
learned Single Judge staying the operation of the notification issued
under sub-s. (3) of s. 5 was to put the said notification in abeyance,
with the result that the local areas to which it related were not
brought within the municipal limits. It is also an undisputed fact
D that the stay order passed by the learned Single Judge was in force
from August 2, 1978 to October 23, 1978. It is, however, urged
that with the dismissal of the writ petition by the learned Single
Judge on October 23, 1978, the impugned notification was brought
into effect and, therefore, the State Government could not proceed
with the election without delimitation of wards and preparation of
E fresh electoral rolls. We are afraid, the contention cannot be
accepted.

The case presents a rather disturbing feature. There were
drastic changes brought about in s. 13 of the Act dealing with the
term of councillors leading to the supersession of all municipalities
F in the State and casting an obligation on the State Government to
hold fresh elections of councillors, before June 30, 1979. In these
circumstances, the Division Bench should have acted with greater
circumspection. On the contrary, the Division Bench, on December
(
19, 1978 passed a stay order staying the dispossession of the Gram .
Panchayat although the Gram Panchayat had applied for staying
G the operation of the impugned notification. It is somewhat un-
fortunate that the stay order passed by the Division Bench was
couched in rather ambiguous terms, but it had virtually the same
effect as the one passed by the learned Single Judge. It is difficult
to comprehend the distinction between "stay of dispossession of the
H Gram Panchayat" and "stay of operation of the impunged notifica-
tion". Apparently, the Division Bench, without applying its mind,
passed an order staying dispossession of the Gram Panchayat, failing
ATMA SINGH v. PUNJAB (Sen, J.) 347

to realise that the effect of stay would dislocate the whole electoral A
process. When a local area sought to be brought within the limits
y of the municipality ,by the issue of a notification under sub-s. (3) of
s. 5, was kept out of such limits by reason of the stay order passed
by the Division Bench, there would obviously be no delimitation of
the municipality into new wards.
B
There was some doubt created about the purport and effect
of the stay order passed by the Division Bench. This brought
about an inevitable chain of events. After the Division Bench
passed the order on December 19, 1978, the State Minister for
Transport who represented the Sabha Areas in the State Legis·
lative Assembly wrote to the Minister for Local Self-Government
to postpone the elections scheduled to be held for the municipality. c
When the exact nature of the stay order was brought to the notice of
the Minister, he agreed with the view of the Local Self-Government
Department that the elections to the municipality could not be
held without a delimitation of the muincipal area. Eventually,
the State Government had no other alternative but to hold the
election of the councillors on the basis of the existing limits of the D
municipality, i.e. from the existing 15 wards, due to·the amendment
of Proviso to sub-s.(3) of s.13 of the Act by Punjab Act 2 of 1979
which made it obligatory for the State Government to hold the
election before June 30, 1979. There can be no doubt that the
State Governnent acted with the best of intentions in deciding to
hold the elections. The election so held on June I 0, 1979 was a E
valid election and the councillors elected are entitled to run their
full term of five years as provided by sub-s.(2) of s.13. The con-
tention that with the vacation of the stay by the dismissal of the
Letters Patent Appeal on April 1, 1980, the whole election would
be invalidated, must, therefore, fail.
F
We are distressed to find that due to the stay order passed by
the Division Bench a large number of inhabitants of the local areas
brought within the municipal limits under sub s.(3) of s.5 of the Act,
who were otherwise eligible to be enrolled as voters, have thereby
been deprived not only of their valuable right to vote at the election G
but also of the right to contest as a candidate for election as a
councillor from any of the wards of the municipality or to the office
of the President or the Vice President. But there is little that can
be done in the matter at this stage.
H
Driven to this situation brought about by the stay orders
of the High Court, there is no other alternative but to direct that
348 SUPREME COURT REPORTS (1981] 3 S.C.R

A the local areas included in the municipality under sub-s. (3) of s. 5
should be formed into a ward or wards and representation given to
them under sub-s. (5) of s. 5 of the Act. The term of the councillors
so elected from such local areas shall be co-terminus with the term
of the C'ouncillors already elected from the existing 15 wards. We are
- assured by learned counsel for the State that the State Government
B shall take immediate steps to comply with this direction. This shall
be a purely interim arrangement necessitated by the somewhat un-
fortunate stay orders passed by the High Court. The interim
arrangement cannot obviously extend beyond the term of the present
council.

c We hope and trust that the State Government shall, in the
meanwhile, take steps to constitute a Delimitation Board under
r. 3 of the Delimitation of Wards of Municipalities Rules, 1972.
After the delimitat10n of the municipality into new wards, the State
Gowrnment shall proceed to re-fix the number of councillors of the
re-constituted municipality under s. 11, prescribe the number of
D elected councillors afresh as required under cl. (a) of sub-s. (I) of
s. J2 of the Act and issue necessary directions for the preparation of
fresh electoral rolls as required under rr. 8 and. 8A of the Election
Rules, 1952.

In the result, the appeal fails and is dismissed. There shall
E be no order as to costs.

S. R. Appeal dismissed.