Research › Browse › Judgment

Allahabad High Court · body

1958 DIGILAW 361 (ALL)

Trilok Chand v. Election Tribunal Meerut

1958-12-24

O.H.MOOTHAM, R.DAYAL

body1958
JUDGMENT R. Dayal, J. - This is a petition under Article 226 of the Constitution. Trilok Chand the petitioner and Shanti Prasad respondent No. 2 were candidates for election to a seat in Ward No. 2 of the Municipal Board, Hapur. Shanti Prasad was declared elected as he secured 730 votes as against 729 secured by the petitioner. 2. The petitioner then filed an election petition challenging the election of Shanti Prasad. The Election Tribunal came to the conclusion that one vote cast in the name of Ram Chandra was wrongly and improperly admitted and that therefore each of the two candidate, actually secured an equal number of votes, namely 729. The Election Tribunal further came to the conclusion that it had power in such circumstances to decide the issue by lot and to declare that candidate elected in whose favour the lot was drawn. A lot was drawn accordingly, and it was in favour of Shanti Prasad. The Tribunal therefore declared Shanti Prasad duly elected. It is this order which Trilok Chand, the petitioner, desires to be quashed. 3. The main contention of the petitioner is that the Election Tribunal had no jurisdiction to determine the result of the election by drawing lots and that it ought, in the circumstances, to have directed lots to be drawn by the Returning Officer. The powers of an Election Tribunal are to be found in Sec. 24 of the Municipalities Act, which, so far as is relevant, provides that: "24 (1). Unless it is otherwise provided by rule made in this behalf the Election Tribunal shall have the same powers and privileges as a judge of a civil court, ................. (2) .................... Sec. 25 of the Act is: "25 (1) If the Election Tribunal after making such enquiry as it deems necessary finds in respect of any person whose election is called in question by a petition, that his election was valid, it shall dismiss the petition as against such person and may award costs at its discretion. (2) .................... Sec. 25 of the Act is: "25 (1) If the Election Tribunal after making such enquiry as it deems necessary finds in respect of any person whose election is called in question by a petition, that his election was valid, it shall dismiss the petition as against such person and may award costs at its discretion. (2) If the Election Tribunal finds that the election of any person was invalid, or that the nomination paper of the petitioner was improperly rejected, it shall either - (a) declare a casual vacancy to have been created, or (b) declare another candidate to have been duly elected, whichever course appears, in the particular circumstances of the case, the more appropriate, and in either case, may award costs at its discretion." 4. The contention for the petitioner is that the Election Tribunal can pass such orders only as are contemplated by sec. 25 of the Act. This need not be disputed. This section provides for the final orders which the Election Tribunal has to pass as a result of its enquiry. The question, however, is whether the Election Tribunal can hold, on coming to the conclusion that each of the two candidates obtained the same number of votes at the election, that the election of the candidate declared elected was valid or invalid. If it cannot say so it cannot pass any of the orders contemplated by sec. 25 on the mere finding that each candidates had secured an equal number of votes. It cannot possibly say, if the Returning Officer's drawing a lot. It follows therefore that the enquiry which an Election Tribunal is expected to make is not complete at the stage of holding that the votes cast for both candidates are equal and enquiry must proceed further to find which of the two candidates should be given an additional vote for the purpose of determining whether the election of the candidate declared elected was valid or not. This it can do only by the drawing of lots, and on the analogy of the provisions of Rule 67 of the U.P. Municipalities (Conduct of Election of Members) Order, 1953 by holding that the candidate on whom the lot falls had received an additional vote at the election. This it can do only by the drawing of lots, and on the analogy of the provisions of Rule 67 of the U.P. Municipalities (Conduct of Election of Members) Order, 1953 by holding that the candidate on whom the lot falls had received an additional vote at the election. In Hari Vishnu Kamath v. Ahmad Ishaque, A.I.R. 1955 S.C. 233 the following observations are to be found at page 248:- "Rule 47 (4) is important. It provides that the decision of the Returning Officer has to the validity of a ballot paper......shall be final subject to any decision to the contrary given by a Tribunal on the trial of an election petition calling in question the election. Under this provision, the Tribunal is constituted a Court of Appeal against the decision of the Returning Officer, and as such its jurisdiction must be co-extensive with that of the Returning Officer and cannot extend further." 5. A provision similar to that of Rule 47 (4) is to be found in Rule 67 (4) of the U.P. Municipalities (Conduct of Election of Members) Order, 1953. We hold, therefore, that the jurisdiction of the Election Tribunal in this case is co-extensive with that of the Returning Officer, and that it can do what the Returning Officer could have done if he had secured the same number of votes. It could, therefore, draw lots and add a vote to the candidate on whom the lot fell. 6. This is exactly what has been elected was valid or invalid. If it cannot held in Mani Ram v. Bhagwat Sarup, 1949 A.L.J. 40 In repelling the contention that when there is a tie then the Commissioner (the Election Tribunal) cannot have recourse to Rule 50 of the Election Rules which if the Returning Officer to refer the matter, when there is a tie, to the District Magistrate, Malik C. J. observed:- "The Commissioner has been given the right to declare another candidate to have been duly elected and for that purpose he can do all that the law provides unless there is something in the section or the Rule to prevent his doing so. Sec. 25 (2) (b) does not debar the Commissioner from taking such initial steps as may be necessary to declare a candidate to have been duly elected. Sec. 25 (2) (b) does not debar the Commissioner from taking such initial steps as may be necessary to declare a candidate to have been duly elected. A Commissioner is in a sence a court of appeal and as a court powers as the trial court unless there is something in the Act or in the rules to take away that power." 7. The observations in paragraph 7 of the Supreme Court judgment in Jagan Nath v. Jaswant Singh, A.I.R. 1954 S.C. 210 do not go against this view. They are simply to the effect that the election contest is not an action at law or a suit in equity and that the statutory provisions of the election law must be strictly observed. 8. It is urged for the petitioner that although Rule 48 of the Uttar Pradesh Municipalities (Conduct of Elections of Presidents and Election petitions) Order, in 1955, lays down what the Election Tribunal is to do if it finds during the trial of an election petition that there is an equality of votes and that the addition of a vote would entitle any of the candidates to be declared elected as President, there is no such provision when an Election Tribunal is dealing with the election petition of a member and that therefore the necessary conclusion is that the Election petition of a member and that therefore the necessary conclusion is that the Election Tribunal determining the question of the election of a member of a Municipal Board has no such power. We do not agree. The absence of such a provision does not necessarily mean that the Election Tribunal does not have this power. 9. We are therefore of opinion that the election Tribunal had the power to draw lots when it came to the conclusion that the two rival candidates had secured an equal number of votes at the election. 10. The other contention is that the Presiding Officer of the Election Tribunal did not himself draw the lots but had the lots drawn by his daughter aged four or five years, and that therefore the drawing of the lots was illegal. It may have been irregular but we cannot see in what way the petitioner could have been prejudiced thereby. The other contention is that the Presiding Officer of the Election Tribunal did not himself draw the lots but had the lots drawn by his daughter aged four or five years, and that therefore the drawing of the lots was illegal. It may have been irregular but we cannot see in what way the petitioner could have been prejudiced thereby. It appears to be immaterial which person picks out the bails or the pieces of paper which were used for the purpose of drawing the lots. 11. For the reasons stated above we see no force in this petition and dismiss it with Costs.