Nurul Hasan v. Returning Officer — 1959 DIGILAW 336 (ALL)

JUDGMENT O.H. Mootham, C.J. - This is an appeal from an order of Mr. Justice Tandon dated the 13th November 1959. 2. The facts which are relevant for the purposes of this appeal can be stated very shortly. The appellant and six others persons were candidates for the election to the Nagar Mahapalika of Allahabad from Katra Ward No. 5. The poll in this ward was directed to be taken on the 25th October 1959 and it duly began on that date. Shortly after the poll commenced there was considerable disturbance and a number of polling booths were wrecked and ballot boxes were destroyed by an unruly crowd. Further polling on that day was abandoned, and by a notification dated the 30th October 1959 the Returning Officer directed that "a fresh poll shall be held in all the booths of all the polling stations of ward No. 5 Katra" on the 8th November 1959. On the 1st November, that is in the interval between the two polling dates, the appellant presented to the Returning Officer a notice of withdrawal of his candidature. The Returning Officer was however of the opinion that the appellant was not entitled to withdraw his candidature, and by an order dated the 5th November 1959 he refused to accept the notice of withdrawal. The appellant then filed a petition in this Court under Article 226 of the Constitution in which he challenged the validity of the Returning Officer's order and prayed that it be quashed by a writ of certiorari. That petition was dismissed by the learned Judge by the order which is subject of the present appeal. 3. Elections to a Nagar Mahapalika are governed by the Uttar Pradesh Nagar Mahapalika Act, 1959, and by Orders made by the State Government under Sec. 46 of that Act. We are concerned in this appeal with the provisions of an Order so made by the State Government called the Uttar Pradesh Nagar Mahapalika (Sabhasadon Ke Nirvachan Ka Sanchalan) Agya, 1959. The paragraphs which are relevant for the present purpose are paras. 14, 23, 29 and 55. Para. 14 empowers the State Government by a notification to appoint, inter alia, the last day for withdrawal of candidature (which shall be the third day after the date of scrutiny of nominations) and to appoint the date or dates on which a poll shall, if necessary, be taken. Para. 14, 23, 29 and 55. Para. 14 empowers the State Government by a notification to appoint, inter alia, the last day for withdrawal of candidature (which shall be the third day after the date of scrutiny of nominations) and to appoint the date or dates on which a poll shall, if necessary, be taken. Para. 23 lays down the procedure to be followed by a candidate who desires to withdraw his candidature within the time prescribed by para. 14. Para. 29 then makes provision for a further withdrawal of candidature, and it provides that. "Notwithstanding anything in para. 23 a candidate may at any time after the date of withdrawal fixed under para. 14, but not later than six days prior to the date fixed for taking the poll, by a notice in writing ..........declare his intention to withdraw from the poll, and thereupon he shall be deemed to have withdrawn his candidature." 4. Para. 55 provides for the holding of a fresh poll in certain circumstances. What those circumstances are is stated in clause (1): "If at any election any ballot box is unlawfully taken out of the custody of the Nirvachan Adhikari or of any Nirvachan Adhyaksha, or is in any way tampered with, or is either accidentally or intentionally destroyed or lost, the election to which such ballot box relates shall be void, but only in respect of the polling at the polling station at which such ballot box was used and no further." 5. Sub. Cl. (2) of this paragraph then provides that the Nirvachan Adhikari shall, after reporting the matter to the Sanchalak and with his previous approval, "appoint a day for the taking of a fresh poll in such or every such polling station or any such polling booth, as the case may be .................." Cl. (3) of this rule then provides that: "In every such case as aforesaid the Nirvachan Adhikari shall take a fresh poll in such or every such polling station or any such polling booth as aforesaid on the day so appointed by him and shall notify the day so appointed and the hours of polling so fixed by him in such manner as he may think fit and the provisions of this Order shall apply to every such fresh poll as they apply to the original poll." 6. The question at issue in this appeal is a very short one. It is what is meant by the words "the date fixed for taking the poll" in para. 29. Mr. S. C. Khare for the appellant has forcibly argued that the word `poll' includes the poll which was held in ward no. 5 on the 8th November and that therefore the appellant was, on the preceding 1st November entitled to withdraw his candidature. It is desirable to make it clear that this appeal has proceeded on the basis that the notification of the 30th October 1959 was issued under paragraph 55. The question whether it was rightly issued under that paragraph is not before us. 7. Mr. Khare has argued that if the State Government choose to make use of the expression "the date fixed for taking the poll" without in any way qualifying the word `poll', then the phrase is necessarily wide enough to cover, and must be taken to have been intended to cover, the fresh poll for which provision is made in paragraph 55. He contends that if it was the intention of the State Government that the phrase "the date fixed for taking the poll" meant the date fixed by the notification under para. 14 of the Order, it would have been a simple matter to add words which would make that intention clear, and the fact that the State Government has not done so, although it has inserted the words "fixed under para. 14" earlier in the same paragraph when referring to the date of the first opportunity for withdrawal, indicates that it was not the intention that any such limitation should be placed upon this word. 8. I do not think that the question is one which is wholly free from difficulty, a difficulty which would not have arisen had clause (1) of para. 29 been worded in a more precise manner. I am however of the view that a careful perusal of the provision of para. 55 leads to the conclusion that the poll for which provision is made in that para, is not the poll referred to in para. 29. It will be observed that para. 29 been worded in a more precise manner. I am however of the view that a careful perusal of the provision of para. 55 leads to the conclusion that the poll for which provision is made in that para, is not the poll referred to in para. 29. It will be observed that para. 55 makes provision for what is described therein as a "fresh poll" only when one or more ballot boxes are unlawfully taken out of the custody of the Returning or Presiding Officer or are destroyed or lost, and that the provision then is that only the election to which such ballot box relates should be void, and that only in respect of the polling station at which such ballot box was used. The power given to the Returning Officer under Cl. (2) with regard to the arranging of a fresh election is similarly restricted. He may, subject to the conditions stated in that clause, appoint a day for taking of a fresh poll "in such or every such polling station or any such polling booth." It is clear, therefore, that if, for example, there are in a particular ward ten polling booths and ten ballot boxes and one ballot box alone is destroyed, that the fresh poll for which provision is made in this paragraph shall be only for such, polling booth. Now learned counsel for the appellant agrees that in such circumstances, that is to say where a fresh poll is held at only one polling booth (or at any number of polling booths less than the total), the date upon which that poll is taken will not be the date "fixed for taking the poll" for purposes of a withdrawal of candidature under paragraph 29. He contends however that if a constituency consists of one ward and all the ballot boxes in that particular ward are destroyed at the same time, then the resulting `fresh poll' which will be taken under para. 55 will be a poll within the meaning of para. 29. It is this argument which have great difficulty in accepting. It means in effect that the right of a candidate to have a second opportunity of withdrawing his candidature will depend upon the extent of the destruction of the ballot boxes. The argument appears to me also to overlook the nature of the poll for which provision is made in para. It means in effect that the right of a candidate to have a second opportunity of withdrawing his candidature will depend upon the extent of the destruction of the ballot boxes. The argument appears to me also to overlook the nature of the poll for which provision is made in para. 55. The fresh poll therein contemplated is, in my opinion, a poll in the case of each polling booth in which the ballot boxes are destroyed, and that if all the ballot boxes in the ward are destroyed or lost, the fresh poll means essentially a series of separate polls for each polling booth. It will be observed that the order made by the Returning Officer on the 30th October, 1959 has directed that a fresh poll shall be held in "all the booths of all the polling stations" of ward no. 5 Katra. In my opinion the learned Judge arrived at the right conclusion that the fresh poll for which provision is made in para. 55 is not the poll contemplated in para. 29, and that therefore the appellant was not entitled to withdraw his candidature on the 1st November of this year. In my judgment this appeal fails and should be dismissed with costs. Dayal, J. - I agree with the order proposed by my Lord the Chief Justice and the reasons therefor. I may however add a few other considerations which lead to the same conclusion. 10. Sabhasads of the Nagar Mahapalika are to be elected under sub-Sec. (1) of Sec. 27 of the Nagar Mahapalika Act. The Director of Elections, Local Bodies, is to supervise the conduct of election of the Sabhasads as provided by Sec. 45. The State Government by an Order provides for matters concerning the conduct of elections. In pursuance of this power the State Government issued. "The U.P. Nagar Mahapalika (Sabhasadon Ke Nirvachan Ka Sanchalan) Agya, 1959." The election of Sabhasads contemplates all the steps necessary for the conduct of the election upto the stage of the declaration of the election results. These various steps have been separately dealt with in this Order. 11. Part IV deals with the time, place and notification of election. Para. 14 deals with the notification of election and fixing of dates. Sub-para. These various steps have been separately dealt with in this Order. 11. Part IV deals with the time, place and notification of election. Para. 14 deals with the notification of election and fixing of dates. Sub-para. (1) requires the State Government to call upon all the wards of the city by a notification in the Gazette to elect Sabhasads to fill seats on the Mahapalika before such date as may be specified in the notification. 12. Sub-para. (2) directs the State Government to appoint certain dates with respect to the various steps in connection with the election. Sub-Cl. (a) deals with the date for making nominations, sub-Cl. (b) provides for the date for scrutiny of nominations, sub-Cl. (c) provides for the last date of withdrawal of candidature, and sub-Cl. (d) for the date or dates on which a poll, if necessary, shall be taken. 13. Sub-para. (3) is "the date for taking the poll shall be a date at least 10 days after the date fixed under sub-para. (2)." 14. Part V of this Order deals with the nomination of candidates. Para. 23 deals with the withdrawal of candidates and provides that any candidate may withdraw his candidature by a notice in writing in a certain form and presented in a certain manner within a certain time. Para. 29 deals with further withdrawal of candidature "not later than six days prior to the date fixed for taking the poll." 15. Part VI deals with the poll. Paras. 52 to 54 deal with cases where the actual polling is interrupted by some reason mentioned in sub-para. (1) of para. 52. In such a case polling is adjourned to a later date. 16. Para. 55 provides for fresh poll in cases of destruction etc. of ballot boxes. Due to its loss or destruction the voting papers in such ballot boxes can be no trustworthy guide of the voting by the elections. Subpara. (1) of this paragraph provides "the election to which such ballot box relates shall be void, but only in respect of the polling station at which such ballot box was used and no further." Sub-para. (2) provides for the taking place of that polling afresh which has become void and authorised the Returning Officer to appoint a day for the taking of a fresh poll in such a polling station. (2) provides for the taking place of that polling afresh which has become void and authorised the Returning Officer to appoint a day for the taking of a fresh poll in such a polling station. It does not provide for any other step in connection with the election. Sub-para. (3) directs the Returning Officer to take certain necessary steps in connection with the fresh polling and provides that the provisions of this Order shall apply to every such fresh poll as they apply to the original poll. Para. 55, therefore, is a complete code with respect to the fresh steps to be taken to replace what is undone on account of the destruction or loss of or the tampering with the ballot boxes. It does not provide for the withdrawal of any candidate. 17. The expression "the date fixed for taking the poll" in sub-para. (1) of para. 29, which is for interpretation in this appeal is identical with the expression used in sub-para. (3) of para 14 of this Order. This expression has not been repeated either in para. 52 to 54 or in para. 55. Para. 52 (1) provides that "the Nirvachan Adhikari or Nirvachan Adhyaksha shall announce an adjournment of the poll to a date to be notified later." Para. 52 (2) directs the Nirvachan Adhikari "to appoint the day on which the poll shall be taken or shall recommence." Para. 55 (2) provides that "the Nirvachan Adhikari .............. shall ........ appoint a day for the taking of a fresh poll in such or every such polling station or any such polling booth." It is clear, therefore, that the expression "date fixed for taking the poll" in sub-para. (1) of para. 29 refers to the date fixed by the State Government in sub-para. (3) of para. 14 and not to any other date. 18. By the Court - The appeal fails and it is dismissed.