Vasant Rao Parhate v. Ghanshyam — 1969 DIGILAW 59 (MP)

ORDER A. P. Sen, J. - 1. This order shall also govern the disposal of Miscellaneous Petition No. 90 of 1969, Durgadas vs. Ganpati Upasrao Ghode and others, heard along with this application. 2. By these two applications, the petitioners challenge the validity of election of the President and of the Senior Vice-President of the Municipal Council, Pandhurna, held at its first meeting called for that purpose on 13th February 1969. The petitioner Vasant Rao Parhate in Miscellaneous Petition No. 89 of 1969 is one of the elected Councillors) and he challenges the election of one Ghanshyam, the respondent No. 1 therein, who has been elected as the Senior Vice-President of the Municipal Committee; while, the petitioner Durgadas in Miscellaneous Petition No. 90 of 1969, challenges the ejection of Ganpati Upasrao Ghode, the respondent No.1 in that petition, who has been declared elected as the President of the Council. At the first meeting of the Council held under the aegis of the Sub-Divisional Officer, Sausar, the election of the President and two Vice-Presidents was held by ballot, under Rule 9(2) of the Madhya Pradesh Municipalities (President and Vice-Presidents) Election Rules, 1962 (hereinafter referred to as "the rules;'). The petitioners challenge the validity of these elections, on the following two grounds: (1) That Rule 9(2) of the rules which provides for the election of the President and Vice-Presidents by ballot is utra vires the State Government of Madhya Pradesh, being in conflict with section 62(3), read with sections 43 and 55(2), of the Madhya Pradesh Municipalities Act, 1961 (Act No. 37 of 1961); (2) That the nomination-papers of the President and the Senior Vice-Presidents not having been filled by their respective proposer, in the manner required by Rule 4 (1) of the rules and not being in conformity with Form A prescribed thereunder, the respective respondents' No. 1 in these petitions, cannot be regarded as candidates duly nominated for election as president and Senior Vice-President." 3. As to the first, the contention is largely based on the terms of section 62(3) (iii), read with sections 43(4), 53(2) and 63 of the Madhya Pradesh Municipalities Act, 1961 (Act No. XXXVII of 1961), (hereinafter referred to as "the Act"). As to the first, the contention is largely based on the terms of section 62(3) (iii), read with sections 43(4), 53(2) and 63 of the Madhya Pradesh Municipalities Act, 1961 (Act No. XXXVII of 1961), (hereinafter referred to as "the Act"). It is urged that no doubt the State Government of Madhya Pradesh was empowered under section 43(4) to make rules for regulating the mode of the election of President and the Vice-Presidents, but nevertheless that had no power to frame a rule which would defeat either the legislative policy behind section 55(2) of the mandatory requirements of section 62(3) (iii). According to the learned counsel, the normal method of holding elections for filling the offices of the President and Vice-Presidents must be by a "show of hands", as under section 55(2) when the first meeting of the Council is called after the election and selection of Councillors, to elect the President and Vice-Presidents, the proceedings of the meeting must be conducted in the manner provided by sections 62 and 63 of the Act. On the strength of these provisions, it is urged that the election of the President and Vice-Presidents is only a subject fur discussion at the first meeting of the Council like any other subjects which may have to be debated in the subsequent meetings thereof, the minutes of which are also required to be recorded like that of any other meetings. No doubt, under section 62(1) and (2), the minutes of the proceedings of each meeting of the Council have to be drawn up and published, in the manner required. However, the requirement of section 63(3) (iii), in case an election of the President and Vice. Presidents cannot be complied with, because their election has to be on a voting by ballots under Rule 9(2). It is urged that this rule is in conflict with section 3) (2), read with sections 62(3)(iii) and 63 of the Act. 4. For a proper appreciation of these submissions, we think it necessary to set out the relevant provisions of sections 43(4), 55 (1) and (2), 62 and 63 as also the terms of Rule 9(2), the validity of which is in question: "43(4) The State government may make rules for regulating the mode and time of election of the President and the Vice-Presidents; * * * 55. First meeting after general election:- (1) The Chief Municipal Officer shall, with the prior approval of the authority prescribed under section 32 within one month of every general election, call a meeting of the elected Councillors as required by section 19 and all provisions contained in this Chapter shall, regarding meetings of the Council as far as may be, apply in respect of the said meeting. (2) The Collector, in the case of Class I and Class II Municipalities and the Sub-Divisional Officer, in the case of Class III and Class IV Municipalities shall call the first meeting of the Council soon after the election and selection of Councillors, to elect the President and Vice-Presidents. * * * 62. Minutes of proceedings - (1) Minutes of the proceedings at each meeting of a Councilor any of its Committee shall be drawn up in Hindi written in Devanagri script and recorded in book to be kept for the purpose separately for the Council and each of its Committee and shall be signed by the Chairman of meeting or of the next ensuing meeting. (2) The minutes of the Council shall be published in the manner prescribed and shall at all reasonable times and without charge be open to the inspection by any inhabitant of the Municipality. (3) The minutes of the proceedings recorded under sub-section (1) shall include- (i) the name of the Councillors present; (ii) the decision of a meeting on every question considered; and (iii) when such decision is not unanimous, the number of votes and the names of Councillors voting for and against such question and the names of those who have remained neutral, whether votes have been taken by division or otherwise. * * * 63. Decision of questions by majority of votes.- Except as otherwise provided by or under this Act, all questions brought before any meeting of a Councilor any of its committees held under this Act, shall be decided by a majority of the votes of the Councillors present and in the case of an equality of votes, the presiding authority at the meeting shall have a second or casting vote: Provided that in the case of an equality of votes at the election of- (a) the President or Vice-Presidents of the Council; * * * the presiding authority shall not exercise its casting vote, and the result shall be decided by lot. * * * Rule 9(2) - When the number of duly nominated candidates for each of the said office is more than one, the election shall be held by ballot," 5. In challenging the validity of Rule 9(1), the learned counsel for the petitioners overlooks the significance of the words as far as may be, appearing in section 53(1) which regulates the first meeting of the Council called after general election. The provisions of Chapter III of the Act which generally relate to conduct of business apply as far as may be, in relation to such meeting. Now, the expression 'as far as may be' must be interpreted to mean 'as far as possible' or 'as far as practicable', or 'so far as the circumstances admit' or 'as nearly as can be'. We apprehend the phrase 'as far as may be' in the context in which it appears in the sense of meaning 'as far as possible' in carrying out the business of that meeting. In Potter and Co. Vs. Burrell and Sons (1897) 1 QB 97, the expression 'as nearly as possible' was interpreted its indicating only an approximation. In that view, the adherence of section 62 (3) (iv) to the first meeting is out of question because the election in that meeting of the President and Vice-Presidents is by ballot. 6. The essence of a voting by ballot is secrecy which prevents any disclosure of either the identity of voters or the manner of voting for or against a motion. (See, Jamuna Prasad Vs. Satya Prakash 1962 JLJ 325=ILR 1963 MP 323=1962 MPLJ 97 per Naik, J., where the connotation of the expression 'voting by ballot' in the general law of elections, has been explained with great clarity). In Crew's Procedure at Meetings, 19th Ed. Pp. 58-9, the different methods of voting are tersely stated, thus: "The usual methods of obtaining the sense of a meeting are: (1) Voice.- This is only adopted when it is only obvious that the meeting is practically unanimous. The chairman in this case usually 'reads the motion to the meeting, exclaims "As many as are of that opinion say 'aye',' and listens to the voices given in the affirmative. Then he says, "as many as are of the contrary opinion say 'No', "and pauses to receive the voices given in the negative. The chairman in this case usually 'reads the motion to the meeting, exclaims "As many as are of that opinion say 'aye',' and listens to the voices given in the affirmative. Then he says, "as many as are of the contrary opinion say 'No', "and pauses to receive the voices given in the negative. By the volume of the voices he judges whether the Yes or the Noes are in the majority. Then he announces "I think the Ayes (or the Noes) have it. This gives an opportunity for anyone present to demand a vote by show of hands. (2) By show of hands - which is generally adopted in the first instance; each person having one vote. Voting by show of hands means the ascertainment of the views of those persons present who are entitled to vote and who in fact do hold up their hands. If the chairman's declaration as to the result is challenged. Generally, the relevant regulations provide that the declaration of the chairman as to the correctness of the result is decisive, and any objection as to its accuracy should be made at once. (3) By a division - i.e., regular count of the members for and against the motion. In this case members separate themselves by going into different rooms or lobbies, the counting of members being delegated to tellers, one or two being appointed for each side of the question. (4) By a Poll - i.e., providing an opportunity for every member to cast his vote. In the absence of special provisions, a vote will first be taken on a show of hands, at the end of which any voter may probably demand a poll." 7. The State Government of Madhya Pradesh could have, while framing rules under section 43(4), chosen any of these well known methods However, the discretion to have provided for a particular method for voting was of the State Government, and for valid reasons, they thought holding of an election by ballot and not by show of hands, should be the method of voting, perhaps because that is the only way of knowing the real will of the electorate i.e., the elected and selected Councillors, and one which creates an atmosphere of complete freedom for them to exercise their franchise where outside influence works as little as possible. As Naik, J., states in Jamuna Prasad's case (supra): In the modern law of elections, 'voting by ballot' has come to be associated with that form of voting of which the main feature is secrecy, and the purpose of this secrecy is to lessen intimidation, bribery or coercion in the electorates. When we keep the characteristics of a ballot in mind, Rule 9(2) which interdicts that instead of there being an open discussion of a motion for the election of the President and Vice-Presidents as a subject on the agenda for the day, the decision of the Councillors thereon shall be reached by a secret ballot, cannot be struck dawn as in excess of statutory authority. Apart from this, the method of election of Councillors under the Act is on a voting by ballot though the electorate is different. There was, therefore, nothing wrong in the State Government's adhering to that as the method for the election of the President and Vice-Presidents as the election is only a part of the entire process of general election by which a Council is constituted. 8. The essential requisites of a rule are well known and need no elucidation. It is enough to bear in mind the limits of a valid rule which may be stated in negative tenms as follows: "A rule must not be in excess of the statutory power authorising it; it must not be repugnant to that statute or travel beyond or enlarge the scope of the statutory provision nor can it conversely curtail the ambit of the statute in any manner. In other words, a rule cannot travel beyond the Act under which it is framed and must re read subject to its provisions." Where the legislature enacts that the rule making authority may by framing a rule prescribe the method by which a thing is to be done, then it follows that the choice is left to the wisdom and discretion of that authority. A rule cannot be denounced as being invalid or repugnant to general law simply because of two or more lawful courses, it adopts ole and rejects the other. So long as a rule operates within its own sphere, i.e., the prescribed statutory limits, the prescribing of a particular method to the exclusion of another, the question of expediency of adoption of that method, is not open to question. So long as a rule operates within its own sphere, i.e., the prescribed statutory limits, the prescribing of a particular method to the exclusion of another, the question of expediency of adoption of that method, is not open to question. Lord Alverstone, C. J., in London Council Vs. Bermondsey Bioscope Co., LR (1911) 1 KB 445, emphasised that- "............ well-recognised principle that where there is competent authority to which an Act of Parliament entrusts the power of making regulations, it is for that authority to decide what regulations are necessary; and any regulations which they may decide to make should be supported." 9. Equally unsubstantial is the assertion of the petitioners that there is any declared policy as envisaged in section 55(2), read with section 62(3) (iii) of the Act, namely, that the election of the President and Vice-Presidents is only a question brought before the Council at its first meeting, which must be decided by a free and open discussion on the floor of the house, i.e., by the majority of the Councillors present and voting by a show of hands. The requirements of section 63 that all questions brought before the meetings of the Council shall be decided by a majority 01 the votes of the Councillors present, read with the proviso thereunder, which enjoins that in case of equality of votes at the election of the President and Vice-Presidents, the Presiding Officer shall not exercise his casting vote but the result of the election shall be decided by lot, also does not necessarily support the construction suggested. The entire submission proceeds on the assumption that section 62(3)(iii) must be rightly adhered to at all meetings of the Council, including the first meeting called for the election of the President and Vice-Presidents. As we have already stated, the procedure of that meeting is governed by section 55(1) which enjoins that the provisions of Chapter III as regards the Procedure at Meetings of the Council shall apply as "as may be". We need only repeat that the section is susceptible of no other construction than this, that the minutes of the meeting would be recorded, as required by section 62, but so far as may be practicable. We need only repeat that the section is susceptible of no other construction than this, that the minutes of the meeting would be recorded, as required by section 62, but so far as may be practicable. Now clause (iii) of Sub-section (3) of that section cannot be brought into play in regard to such meeting as it requires that whenever a decision on any question considered on the floor of the house is not unanimous, the number of votes cast and the names of Councillors 'voting for and against such question' and of those remaining neutral, whether their vote, have been taken by division or otherwise should be recorded. That requirement of this section must stand excluded because the mode of filling in these offices as prescribed by Rule 9 (2) framed under section 43(4), is that of an election by ballot, as it would be totally impracticable or impossible of compliance from any reasonable point of view. 10. The decision of this Court in Sojharmal Sawandas Vs. Municipal Council, Kharsia 1964 JLJ 189=ILR 1964 MP 438=1964 MPLJ 293, striking down Bye-law 16(d) of that Council which enabled the Chairman, in dealing with a motion of no-confidence, to adopt the mode of voting by ballot, proceeds on its view that the Act drew no distinction between a meeting called for purposes of discussion of a motion of no-confidence and that for transacting its other normal business. Ordinarily, a motion of no-confidence should be the subject for a free and open discussion on the floor of the house, at a meeting called for that purpose. Apart from that, the Act nowhere provides that voting on such a question should be by ballot. The decision in Sojharmal's care (supra), instead of helping the petitioners, is really against their contention. In that case, the Court enunciated the principles applicable, in these words: "Now, the M. P. Municipalities Act, 1961, nowhere provides that voting on any question, motion or resolution of no-confidence shall be by ballot, that is, by secret voting, section 47(i) only prescribes the majority that must exist for the passing of a motion of no-confidence. It does not say anything as to the method which should be pursued for voting on a motion of no-confidence. It does not say anything as to the method which should be pursued for voting on a motion of no-confidence. It is section 62(3) of Act which throws light on the method of voting to be adopted when any question or m0tiun of no-confidence is brought up before any meeting of the Council for discussion and decision." 11. That Act, having by Rule 9 (2) framed thereunder, prescribed for a "voting by ballot" as the mode of holding an election to the office of the President and Vice-Presidents, the ordinary method of voting, as stated in Halsbury's Law of England, 3rd Ed., Vol. 9, para 106, p. 52, which was adopted in Sojharmal's case (supra), would not be applicable. When the statute prescribes for a particular method in which the vote of the Councillors on such a subject is to be taken, then that method must be followed and no other. There is no substance in the contention that the words 'regulating the mode' in section 43(4), do not envisage the prescribing of a method of election. The word 'regulating' in its accepted connotation, means 'prescribing', 'adjusting', 'adopting', 'conforming', 'attuning" etc. while the word 'mode' in its ordinary parlance means the manner, method, procedure etc. The language of section 43(4) is dear and unambiguous, and it leaves to the State Government the power to prescribe by rules, the manner of holding election to the offices of the President and Vice-Presidents. In exercise of that power, the Government have framed the• necessary Rule 9(2) in that behalf, prescribing that the method of election shall be by ballot. For all the foregoing reasons, we would uphold Rule 9(2) as intra vires the State Government as it was clearly within the ambit of their rule-making authority. 12. That brings us to the next and last submission, namely, that the election of the respondent No. 1 in each petition as the President and the Senior Vice-President of the Municipal Council was rendered invalid because their nomination papers were not in conformity with Rule 4 (1) of the Rules, cannot be accepted. The provision of Rule 4 (1) reads:- "4. Presentation of nomination papers. The provision of Rule 4 (1) reads:- "4. Presentation of nomination papers. (1) Candidates for election as President or Senior Vice-President or Junior Vice-President shall be nominated by a nomination paper in Form A, which shall be delivered by the candidate in person or by his proposer or seconder between the hours of eleven in the forenoon and four in the afternoon, to the presiding authority on the date and at the place specified in the notices in rule 3." The submission proceeds on the parenthetical clause: "(to be filled by the proposer)", which appears in Form A prescribed under that rule. That the nomination papers had been signed by the respective proposers is not denied, but what is asserted is that they should themselves have filed in the blanks in the printed form. In other words, the learned counsel reads the parenthetical clause as meaning 'to be filled by the proposer himself'. We are unable to read the phrase in that way. The word 'himself' is not there and cannot be read into bracketed portion. We are, accordingly, of the view that the nomination paper in Form A under Rule 4 (1) of the Rules need not be filled by the proposer himself because that is not a requirement prescribed under Rule 4 (1). When a nomination paper is filled under the direction of a proposor, it would be taken to have been filled by the proposer. When he affixes his signature on the nomination paper, the requirements of that rule are substantially complied with because he would be deemed to have signed it in token of acceptance of its contents. 13. The decision in Shivkaran Hariramji Vs. Supervising Officer-cum-Tahsildar, Jaora 1968 JLJ 961 =(1968) MPLJ 407, relied upon by the learned counsel is, therefore, not attracted. When he affixes his signature on the nomination paper, the requirements of that rule are substantially complied with because he would be deemed to have signed it in token of acceptance of its contents. 13. The decision in Shivkaran Hariramji Vs. Supervising Officer-cum-Tahsildar, Jaora 1968 JLJ 961 =(1968) MPLJ 407, relied upon by the learned counsel is, therefore, not attracted. In that case, the Court considered the requirements of Rule 13 (1) (i) of the Madhya Pradesh Municipalities (Preparation, Revision and Publication of Electoral Rolls, Election and Selection of Councillors) Rules, 1962, requiring filling in by the Councillors of the name of the particular wards from which they were seeking election in their nomination papers in Form IV, as being imperative in nature which could not be relaxed in a Municipal election and, therefore, the election of candidates to the Jaora Municipality from its different wards who had not complied with that requirement but had only entered the number of their respective wards, was held to be illegal and invalid, because the admitted non-compliance of Rule 13 (1) (i) ibid resulted in a defect which could not be cured. But, as we have already stated, that neither Rule 4 (1) of the Rules nor the nomination paper in Form A prescribed thereunder require that the nomination paper should be filled in by the proposer himself. The word 'himself' is not there and cannot read into either Rule 4 (1) or Form A and, therefore, there being no such requirement, the question of their being mandatory or directory does not arise. 14. The result is that this petition fails and is dismissed with costs, Counsel's fee Rs. 100, if certified.