Gurdeep Singh & Ors Vs. State of
Punjab & Ors [2000] INSC 205 (7 April 2000)
S.R.Nabu, R.C.Lahoti
R.C. Lahoti, J.
A meeting of the newly elected members of the
Municipal Council, Bareta for the purpose of electing President and Vice-
President of the Municipality, as contemplated by Section 20 of the Punjab
Municipal Act, 1911 (hereinafter the Act for short) read with Rule 3 of Punjab
Municipal (President & Vice-President) Election Rules, 1994 (hereinafter
the Rules for short) was convened for 7th April, 1998. There are 13 members of
the Municipal Council.
The local member of the legislative assembly
is an ex-officio member of the Council, who was Shri Hardev Singh Arshi at the
relevant time. On 7.4.1998 only 5 out of 13 elected members were present which
did not make the quorum for the convened meeting. The convener of the meeting,
therefore, adjourned the meeting for want of quorum to 11.4.1998 at 11 a.m. to
be held in the office of the Municipal Council, Budhlada. On 11.4.1998, the
thirteen elected members and ex-officio member Shri Hardev Singh Arshi, M.L.A.
were all present at the appointed time and place. The meeting commenced. It was
presided over by Shri Tej Kumar Goyal, P.C.S., General Assistant to the Deputy
Commissioner, Mansa, as convener. As contemplated by Rule 3, oath of allegiance
was administered to all the elected members. Proposals were then invited for
the post of the President. The names of Shri Lachman Dass and Shri Gurdeep
Singh were duly proposed and seconded. As there was a contest, the convener
proceeded to call for voting. Shri Mohinder Singh, who had proposed the name of
Shri Gurdeep Singh demanded the election to be held through open ballot.
The convener declared that the Rules
contemplated election by secret ballot. However, Shri Gurdeep Singh, Shri
Mohinder Singh and their followers refused to abide by the opinion of the
Presiding Officer and insisted on open voting. On the convener having refused
to accede with their demand, Shri Gurdeep Singh, Shri Mohinder singh and 6
others, i.e. in all 8 members, staged a walk out by leaving the place of the
meeting. Shri Hardev Singh Arshi, M.L.A.and the remaining 5 members requested
for Shri Lachman Singh being declared elected as President. However, the
convener was of the opinion that before proceeding further he would like to
seek guidance from the higher officers and the Government because of the legal
point involved and he adjourned the meeting for further orders and drew up the
proceedings of the meeting recording the above said facts.
Shri Lachman Dass and a few other members
preferred a writ petition before the High Court seeking a mandamus to the
convener of the meeting for resuming the meeting from the stage at which it was
adjourned and concluding the election.
By order dated 12.2.1999, which is under
appeal, the High Court has allowed the writ petition couching its rule in
following words :- In these circumstances, we direct the official respondents
to continue the election from that stage by instructing either the fourth
respondent or any other competent official to convene the meeting according to
law after giving proper notice only to such of those members who remained
present in the venue of the meeting after respondents 6 to 14 had walked out,
and permit them to vote in the election for the office of the President. If any
of such members choose to be absent on the date fixed for election to the
office of the President in spite of the notice to them then, those members who
are present shall be permitted to vote and elect the President. Whoever gets
the highest number of votes as between the petitioner and the 10th respondent
should be declared as elected as President.
So far as the office of the Vice-President is
concerned, the election for the same shall be held separately in accordance
with law, in a separate `meeting.
This petition is ordered accordingly.
Feeling aggrieved, Shri Gurdeep Singh and 8
others have filed the present appeal by special leave.
We have heard the learned counsel for the
parties.
During the course of hearing it was submitted
that Smt.Bachan Kaur, a female member, was illiterate and the petitioners were
insisting on her ballot being cast with the help of a co-member of the
confidence of Smt. Bachan Kaur, but that was not agreed to and this was the
only controversy. However, we will not enter into disputed questions of fact
and for the purpose of deciding this appeal we would go by the record of
proceedings, as prepared by the convener of the meeting, who being a
responsible government officer, his record of proceedings can be taken to be
correct.
Rules 3 & 4 provide as under:-
3. Manner of election. The Deputy
Commissioner or any Gazetted Officer authorised by him in this behalf
(hereinafter in this rule referred to as the convener) shall, within a period
of fourteen days of the publication of the notification of election of members
of a newely constituted Municipality, fix, by giving not less than ninety hours
notice to be served at the ordinary place of residence of all the elected
members, a date for convening the first meeting of the elected members of such
municipality by stating in the notice that at such meeting the oath of
allegiance will be administered to the members present and also stating that
the President and the Vice- President or Vice-Presidents as the case may be,
will be elected.
4. Voting by ballot. (1) The voting for the
offices of President and Vice-President or Vice- Presidents as the case may be
shall be by the ballot by writing Yes or No on the ballot paper. Special
ballot-papers shall be used for such voting, each bearing an official mark to
be placed thereon by the Deputy Commissioner.
(2) If any member is illiterate or is
otherwise incapable of casting his vote by writing Yes or No on the ballot
paper, the person presiding over the meeting shall record Yes or No, as the
case may be, on the ballot paper on behalf of such member, in accordance with
his wishes.
(3) The person presiding over the meeting
covened under rule 3 shall ensure utmost secrecy while recording the wishes of
the members as laid down in sub rule (2) and shall keep a brief record of each
such instance, without indicating the manner in which the vote has been cast.
The Rules are clear, unambiguous and do not
leave any room for doubt. In as much as there was a contest, the convener ought
to have proceeded for voting through ballot papers observing utmost secrecy.
There could not have been an open voting which, though demanded, should have
been firmly ruled out. Sub rule (2) of Rule 4 reposes confidence in the
convener, i.e. the person presiding over the meeting to assist any member who
is illiterate or otherwise incapable to cast his vote by writing Yes or No on
the ballot paper on behalf of such member. It is unfortunate that the members
wanted the voting to be conducted in a manner inconsistent with the Rules. The
convener should have over-ruled any such demand and should have proceeded to
hold the election in the manner contemplated by the Rules.
The convener was also not justified in
adjourning the meeting on the ground of seeking guidance from the higher
officers and the Government. There was hardly any occasion for such seeking of
the guidance and adjourning the meeting.
The learned counsel for the respondents
submitted that the High Court was justified in directing the meeting to proceed
from the point wherefrom it was adjourned and directing the 8 members who had
staged a walk over to be excluded from the meeting as by their conduct they had
shown that they were not participating in the meeting. We do not agree. Shri Gurdeep
Singh had not withdrawn his candidature. The two candidates were duly nominated
candidates and the stage for voting was set. Even if a few members including
one of the candidates had left the place of the meeting, nothing prevented them
from coming back and joining in the voting.
If only the convener had commenced the voting
and the members, who had earlier staged a walk-over, had returned and expressed
their desire to join in voting, they could not have been prevented from doing
so. The High Court was justified in directing the meeting to be resumed from
the point at which it was adjourned but was not justified in directing the
members, who had walked out, from being excluded from participation at such
reconvened meeting. For the foregoing reasons, the appeal is partly allowed.
The direction of the High Court for reconvening the meeting and resuming the
same from the stage at which it was adjourned is sustained. So much part of the
order as directs the notice of the meeting to be given to only those members
who had remained present at the venue of the meeting and excludes the members
staging walk-over from participation in the meeting and in the voting at the
election for the office of the President is set aside. Instead it is directed
that the notice of such reconvened meeting shall be given to all the members
constituting the Municipality and all such members, who choose to attend, shall
be allowed to participate in the voting. The meeting having already adjourned
once and the proceedings of the meeting having already commenced, it shall not
be liable to be adjourned for want of quorum. S/Shri Gurdeep Singh and Lachman
Dass shall be treated as duly nominated candidates for the office of President.
The meeting shall be held and concluded in accordance with law. In view of the
time which has already elapsed, it is directed that the official respondents
shall convene the meeting within a period of two months from the date of
communication of this order. No order as to the costs.
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