Thakur Prasad Singh v. State of U. P. — 1974 DIGILAW 38 (ALL)

JUDGMENT Satish Chandra, J. - These two special appeals raise inter-related questions. That is why we propose to decide them by a common judgment. 2. Both the appeals are directed against the judgment of a learned single Judge of this Court dismissing writ petitions filed by the appellants. Thakur Prasad Singh, the appellant in special appeal No. 204 of 1973 had challenged the order of the Director of Elections (Local Bodies) setting aside his election to the office of Pramukli of the Kshetra Samiti, Tanda. Vidya Pal Singh, the appellant in special appeal No. 241 of 1973 had challenged the order passed by the Director requiring the Returning Officer to recount the votes on the finding that the counting done earlier and the consequent declaration of Vidya Singh as the elected candidate were incorrect. 3. In the writ petitions the impugned order of the Director were challenged on the following grounds : (1) that rule 4(5) of the relevant election rules was ultra vires the rule-making power of the State Govern (2) rule 4(5) violated Art. 14 of the Constitution; (3) rule 4(5) was void because it was repugnant to rule 35; and (4) the impugned order of the Director violated the principles of natural justice. The learned single Judge did not find substance in any of these submissions and dismissed both the writ petitions. Mr. Khare, and Mr. Chaudhary learned counsel for the appellants submitted that : (I) rule 4(5) was ultra vires the powers of the rule-making authority and (2) rule 4(5) violates Art. 14 of the Constitution. 4. Section 7 of the U. P. Kshetra Samitis and Zila Prarishads Adhiniyam 1961, provides for the election of Pramukhs of Kshetra Samitis. It directs that the elections shall be held by secret ballot and in the manner provided for by rules which shall also provide for resolution of doubts and disputes relating to the election of Pramukhs and Up-pramukhs. Section 237 of the Act confers upon the State Government power to make rules consistent with the Act in respect of any matter or matters for which the power of making rules is expressly or by implication conferred by the Act and may also make rules which arc otherwise requisite for carrying out the purposes of the Act. Section 237 of the Act confers upon the State Government power to make rules consistent with the Act in respect of any matter or matters for which the power of making rules is expressly or by implication conferred by the Act and may also make rules which arc otherwise requisite for carrying out the purposes of the Act. In exercise of these powers the State Government framed the U. P. Kshetra Samitis (Election of Pramukhs and Up-pramukhs and Settlement of Election Disputes) Rules, 1962, Chapter I of the Rules consisting of rules 1 to 4 is general. Chapter II deals with the conduct of election of Pramukh, Chapter III with the conduct of election of Up-pramukh and Chapter IV is headed as "Disputes Regarding Elections of Pramukhs and Up-pramukhs". Such disputes are to be decided by a `Judge" through an election, petition. 5. Rule 4(5) provided :-- "4(4) The Returning Officer and the Assistant Returning Officer shall perform their functions and duties under the general superintendence of the Director of Elections (Local Bodies), U. P:" This sub-rule was repealed and reenacted and a new sub rule (5) was added by an amendment which came into force on 17th February, 1973. The new rule was : "4(4) The Returning Officer and the Assistant Returning Officer, shall perform their functions and duties under the general superintendence, directions and control of the Nirvachan Nideshak (Sthaniya Nikaya), U. P." Here the only addiiton was that the Director was conferred powers of direction and control also over the Returning and Assistant Returning Officers. Sub-rule (5) stated : "(5) Without prejudice to the generality of the power under sub-rule (4), the Nirvachan Nideshak (Sthaniya Nikaya) may, in particular, modify a declaration of result or. cancel an election, where a mistake patent on the face of the record has been committed by a Returning Officer or an Assistant Returning Officer." This was a new innovation to the till then existing mode of resolving election disputes. In addition to the agency of the Judge resolving such disputes after hearing and deciding an election petition, rule 4 (5) conferred power on the Director to cancel an election or modify a declaration of result if a mistake patent on the face of the record has been committed by the Returning Officer or the Assistant Returning Officer. In addition to the agency of the Judge resolving such disputes after hearing and deciding an election petition, rule 4 (5) conferred power on the Director to cancel an election or modify a declaration of result if a mistake patent on the face of the record has been committed by the Returning Officer or the Assistant Returning Officer. Unlike Chapter IV of the Rules which prescribed detailed judicial procedure including hearing of parties and recording of evidence, the power conferred on the Director is summary. He is not required to hear any one. Unlike an election petition which could be filed only within the prescribed period of limitation of 30 days from the date of declaration of results, the power conferred upon the Director by sub-rule (5) was not limited to any period of time. It may be exercised at any lime, even after an election petition has been filed, or may be even after an election petition has been decided and the declaration of the result upheld by the Judge, Undoubtedly, the power conferred upon the Director was drastic. Sub-rule (5), however, did not last long. It was repealed and re-enacted by another amendment which came into force on 21st March 1973. The new sub-rule (5) provided : "4(5) Without prejudice to the generality of the power under sub-rule (4), the Nirvachan Nideshak (Sthaniya Nikaya) may, in particular, at any time before the issue of notification under rule 29, modify a declaration of result or cancel the entire election proceedings or any part thereof, as may be necessary, where a mistake patent on the face of the record has been committed by the Returning Officer or an Assistant Returning Officer. Where such mistake consists of an error of calculation due to non-observance of the procedure prescribed in Schedule II and such error is likely to vitiate the result, the Nideshak may direct the Returning Officer to recount the votes after notice to the contesting candidates and to modify the result, if necessary. The sealed packets containing ballot papers shall be opened before the contesting candidates and the members who may be present on the date, time and place specified in the notice. The sealed packets containing ballot papers shall be opened before the contesting candidates and the members who may be present on the date, time and place specified in the notice. The Nideshak may act under this rule suo motu or otherwise and it shall not be necessary for him to give opportunity to any person to show cause before passing any such order." Now the power was exercisable only till the issue of the notification of the declaration of result and not thereafter. In the case of Thakur Prasad Singh the Director passed the impugned order on 10th March, 1973. On that date sub-rule (5) as it was originally enacted was in operation. In the other appeal of Vidya Pal Singh the Director passed the impugned order on 22nd March, 1973. On that date the amended sub-rule (5) was in force. We have thus to consider the validity of sub-rule (5) as it was prior to as well as after the amendment. 6. In support of his submission that rule 4(5) was ultra vires the power of the rule-making authority. Mr. Khare submitted that Section 7(1) of the Act authorised the rule-making authority to make rules for resolving doubts and disputes relating to election of Pramukhs. Learned counsel submitted that in the context of the other provisions of the Act the phrase "resolution of doubts and disputes", inter alia, meant decision of such doubts and disputes in a judicial manner, that is at least consistently with the principles of natural justice. Section 23(1) of the Act confers power to disqualify a candidate from being elected, interalia, as a Pramukh. This power has been conferred on "an authority competent to decide election disputes under this Act or the rules made thereunder". Section 23, therefore, contemplates the existence of an authority competent to "decide" election disputes. In this context Section 7(l), when it says that the rules shall provide for resolution of doubts and disputes relating to the election of Pramukhs, does in our opinion, mean that the rules will create a machinery for deciding such doubts and disputes. The term "resolution" in the phrase "for resolution of doubts and disputes" obviously means decision of the doubts and disputes. In Ghanshyap Das Gupta v. Board of High School & Intermediate Education, A.I.R. 1956 All. The term "resolution" in the phrase "for resolution of doubts and disputes" obviously means decision of the doubts and disputes. In Ghanshyap Das Gupta v. Board of High School & Intermediate Education, A.I.R. 1956 All. 539 one of the questions considered was as to the significance of the term "consider" in the regulations framed by the Board of High School and Intermediate Education, which authorised the Examinations Committee to consider cases of, inter alia, use of Unfair means and to award penalties. It was held (Paragraph 90) : "The word `consider' means to fix the mind on with a view to careful examination; to examine; weigh.... Without a finding that the examinees have been guilty, of one or the other of the acts mentioned in the regulation the Examinations Committee would have no power to award a penalty. The Committee is not a court of law and therefore its consideration of a case is not to be the same as decision by a court of law in a trial. Nevertheless, the charge of malpractice and use of unfair means at the examination cannot be adequately `considered' without calling for an explanation from tote examinees concerned. It will be unreasonable to suppose that in considering the cases of malpractice the Examinations Committee may give its decision not upon the result of the enquiry but in its own discretion specially when the decision may seriously affect the natural right of reputation of the examinees, may jeopardise their future career." In our opinion, these observations apply with greater force to a situation where an authority is conferred power to resolve or decide doubts and disputes. Such decision will affect the right of the candidate who has been declared elected to hold the office. Section 7(1) therefore, conferred authority upon the rule-making power to frame rules for resolution of doubts and disputes in a judicial manner, namely, consistently with the principles of natural justice in situations where a doubt or dispute as to the declaration of result already made by the Returning Officer is to be resolved or decided. Section 7(1) did not confer power upon the rule-making authority to make rules whereby the election of Pramukhs could be set aside or modified summary without affording the affected party even an opportunity of hearing. 7. The rule-making authority did appreciate this import of Section 7(1). Section 7(1) did not confer power upon the rule-making authority to make rules whereby the election of Pramukhs could be set aside or modified summary without affording the affected party even an opportunity of hearing. 7. The rule-making authority did appreciate this import of Section 7(1). Chapter IV of the Rules provided a detailed judicial procedure for the decision of election disputes through an election petition which was to be decided by a Judge. The term "Judge" was defined by Section 2(34) of tile Act to mean the District Judge including any other subordinate civil Judicial Officer named or designated by the District Judge in this behalf. Rule 40 provided that in hearing of an election petition the procedure provided in the Code of Civil Procedure, 1908, shall be followed. Sub-rule (2) of rule 40 made the Indian Evidence Act applicable to the trial of an election petition. This chapter of the rules carried out the mandate of Section 7(1) as well as its object by providing a judicial adjudication of election disputes by a judicial Officer. 8. Rule 4(5) as originally enacted did not specifically provided that the Director will act judicially namely, he will comply with the principles of natural justice before cancelling an necessary for the Director to give opportunity to any person to show cause before cancelling an election or modifying the declaration of result. Before, the learned single Judge. it was urged on behalf of the State that the rule-making authority when it enacted sub-rule (5) originally, intended that no opportunity of hearing shall be given ana this implicit intention was made explicit-by the re-enacted sub-rule (5). This view was upheld by the learned single Judge. 9. In Cane Brandy Syndicate v. Inland Revenue Commissioner, (1921) 2 K. B. 403, 414, Lord Sterndale, M. P. said:- "I think it is clearly established in Attorny-General v. Clarkson, (1900) 1 Q. B. 156 that subsequent legislation on the same subject may be looked to in order to see what is the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation, if it proceeds upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambigutty in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier." These observations of Lord Sterndale can be taken as settling the law; because they have been quoted with approval by the Supreme Court in Jogendra Nath Naskar v. Commissioner of Income-tax, 74 I. T. R. 33 at p. 44 as well as by a Full Bench of this Court in Sher Khan v. State, A.I.R. 1958 All. 733, para 2. The same view was taken by the Supreme Court in State of Bihar v. S. K. Roy, A.I.R. 1966 S. C. 1995, para 6. This principle would, in our opinion, be equally applicable,to subordinate legislation. 10. Since sub-rule (5) was repealed and re-enacted rule specifically clarified that no opportunity to short cause is to be given, it seems that the rule-making authority did intend that an opportunity of hearing is to be excluded when the matter is to be decided by the Director. Under the original sub-rule (5) the Director could cancel an election where a mistake patent on the face of the record has been corny committed by a Returning Officer or an Assistant Returning Officer. Chapter IV of the Rules which provided for decision of election disputes does not confine the election petition to any particular ground. An election can be filed on any ground, including the ground mentioned in sub-rule (5) that a mistake patent on the face of the record has been committed by a Returning Officer or an Assistant Returning Officer. If the rule-making authority had intended that such patent mistakes were to be rectified after a hearing and trial, it may not have enacted sub-rule (5) at all; because there was already provision for such a method of rectifying patent mistakes. This also supports the submission that sub-rule (5) as originally enacted intended to exclude an opportunity of showing cause. 11. Sub-rule (5) conferred power upon the Director of Elections, who neither by the Act nor by the Rules, is prescribed to be a trained Judicial Officer. The power was conferred on an administrative authority to rectify a patent mistake summarily, without any confronted enquiry. 11. Sub-rule (5) conferred power upon the Director of Elections, who neither by the Act nor by the Rules, is prescribed to be a trained Judicial Officer. The power was conferred on an administrative authority to rectify a patent mistake summarily, without any confronted enquiry. This aspect in the context of an election petition being decided by a "Judge" after hearing also indicates that the rule-making authority did not intend that the Director will decide the doubt or dispute judicially. 12. As already seen, Section 7(1) which authorised the framing of rules for resolving od deciding election disputes did not authorise such decision in a summary, manner without an opportunity of showing cause to the aggrieved party. Hence sub-rule (5) as it was originally enacted as well as after its repeal and re-enactment was ultra wires the powers of the rule-making authority. 13. The learned Advocate-General referred to Section 237 of the Act and submitted that it conferred power to make rules which are requisite for carrying out the purposes of the Act. The purpose of resolving election disputes was specifically mentioned in Section 7(1). Properly construed, it required a judicial decision of such disputes, namely consistently with the principles of natural justice. The last clause of Section 237 which authorised the making of rules which are requisite for carrying out the purposes of the Act could not confer power to contravene the implicit purpose in Section 7(1), namely a judicial decision of election doubts and disputes. 14. Mr. Advocate-General stressed that Section 7(1) contemplated ruses for resolving not merely election disputes but doubts as well. It was submitted that a summary and non-judicial procedure could be provided by rules for resolving doubts in addition to a judicial procedure for resolving disputes. These are several difficulties in accepting this submission. In our opinion, Section 7(1) uses the phrase "doubts and disputes" in the context of their resolution as a single integrated idea. The term "resolve" applies to both equally. Both were intended to be resolved in a judicial manner. If, however, we assume that resolution of doubts could be provided in a summary and non-judicial manner, Rule 4(5) would not be saved. Sub-rule (5) does not provide for resolution of any doubt. The term "resolve" applies to both equally. Both were intended to be resolved in a judicial manner. If, however, we assume that resolution of doubts could be provided in a summary and non-judicial manner, Rule 4(5) would not be saved. Sub-rule (5) does not provide for resolution of any doubt. It provides for cancellation of the election or modification of declaration of result on a definite finding that a mistake patent on the face of the record has been committed. Sub-rule (5) does not authorise the resolution of any doubt but allows action on a finding of certainty. It does not say that if the Director is doubtful of any thing he may act in a particular, manner. This course of reasoning will not sustain Rule 1(5). 15. The learned Advocate-General urged that on the submission raised on behalf of the appellant, the last clause of sub-rule (5) that "it shall not be necessary for him to give `opportunity to any person to show cause "is alone ultra wires the rule-making power. He submitted that this clause was severable and should alone be struck down. Normally, the question of severability arises where a statutory provision deals with distinct topics. In such cases courts have held the provision severable and have struck down the invalid part alone. But that is not the case here. Sub-rule (5) deals with a single and integrated topic of resolving patent mistakes by the Director. 16. But there is another kind of severability as observed by Patanjali Sastri. C. J. delivering the majority judgment of the Supreme Court in State of Bombay v. United Motors (India) Ltd., A.I.R. 1953 S. C. 252 : "It is a sound rule to extend separability to include separability in enforcement." It is this kind of severability that the learned Advocate-General is contending for. 17. The law with regard to sever-ability in enforcement was settled by Venkatarama Aiyar, J. in R. M. D. Chamadbaugwalla Union v.Union of India, A.I.R. 1957 S. C. 628. After a careful examination of English, American and Indian authorities. Venkatarama Aiyar, J. laid down the following principles : 1. In determining whether the valid parts of a statute are separable from the invalid parts. thereof, it is the intention of the legislature that is the determining factor. After a careful examination of English, American and Indian authorities. Venkatarama Aiyar, J. laid down the following principles : 1. In determining whether the valid parts of a statute are separable from the invalid parts. thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory Construction, Vol. 2, p. 176-177. 2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if They are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Colley's Constitutional Limitations Vol. I, at pp. 360-361; Crawford on statutory construction, pp,"217-218. 3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pp. 218-219. 4. Likewise, when the valid and invalid parts of a statute are independent and. do not form part of a scheme but what is left after omitting the invalid portion is. so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety. 5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted to the same section or different sections (vide Colloey's Constitutional Limitation,Vol. I, pp. 361-362); it is not the form, but the substance of the matter that is material and that has to be ascertained on an examination of the Act as a whole and of the settling of the relevant provisions therein. 6. I, pp. 361-362); it is not the form, but the substance of the matter that is material and that has to be ascertained on an examination of the Act as a whole and of the settling of the relevant provisions therein. 6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must he struck down as void, as otherwise. it will amount to judicial legislation, Vide `Sutherland on Statutory. Construction, Vol. 2, P. 194. 7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Constructions, Vol. 2, pp. 177-178. According to these principles, the vital question is the intention of the legislature. The Courts have to find whether the legislature would have enacted the valid part if it had known that the rest of the rule was invalid. Here, the whole idea in enacting and amending sub-rule (5) was to have a summary decision without the intervention of the concerned parties. That being the intention of the rule-making authority, the last clause of sub-rule (5) cannot he held severable. Under the third principle laid down by Venkatarama Aiyar, .J., it is clear that sub-rule (5) contained a single, scheme which was intended to, be operative as a whole. The invalidity of a part results in the failure of the whole. In our judgment, the entire sub-rule (5) is bad. 18. Mr. Khare invited our attention to certain Supreme Court decisions" in support of his submission that a rule-making power can be exercised in the known manner, otherwise it will constitute excessive delegation. Since, in our view, the rule is ultra vires on the ground mentioned above, we deem it unnecessary to discuss this aspect of the matter or the allied submission that this innovation of conferring such drastic power on an executive official destructive of the democratic fabric of the Constitution. 19. It was then urged that rule 4(5) is violative of Art. 14 of the Constitution. 19. It was then urged that rule 4(5) is violative of Art. 14 of the Constitution. It was submitted that the Director can act under rule 4(5) even on information given to him by a defeated candidate, who could challenge the election on the same ground oh which he has moved the Director under rule 4(5), by means of an election petition. Thus, at the sweet will of a defeated candidate the election of the successful candidate is liable to be jeorprdised by the different procedures one of which is drastic and adverse to the successful candidate, namely the one provided by Rule 4(5). Here the election can be cancelled without even an enquiry, without an opportunity of hearing being afforded to the successful candidate. It was further urged that the rules do not give any guidance to the declaration of results as to when would be entitled to move the Director instead of filing an election petition. A person who is entitled to challenge the election by an election petition on the ground that a mistake patent on the face of the record has been committed by the Returning Officer or the Assistant Returning Officer is equally entitled to move the Director to claim the same relief namely cancellation of the election, at the hands of the Director. The fate of the successful candidates is in jeopardy at the whim of another person in adopting one or the other procedure. The procedure prescribed by rule 4(5) being more adverse would be violative of Art. 14 of the Constitution on the principle laid down by the Supreme Court in Northern India Caterers v. State of Punjab, A.I.R. 1967 S. C. 1581. 20. The learned Advocate-General submitted that Rule 4(5) does not confer any right upon any person to move the Director. Rule 4(5) authorises the Director to act suo motu "or otherwise". This term "or otherwise"contemplates a case where a defeated candidate or an electorate or a stranger moves the Director inviting his attention to a patent mistake. In both the present cases the Director acted on applications filed by the defeated candidate. He did not reject those applications. He called for reports and then passed orders. We did not bear the learned Advocate-General as characterising this procedure of the Director as contrary to the rules. In both the present cases the Director acted on applications filed by the defeated candidate. He did not reject those applications. He called for reports and then passed orders. We did not bear the learned Advocate-General as characterising this procedure of the Director as contrary to the rules. Rule (5) may not expressly confer a right on a designated person to move the Director, but nonetheless the Director can be validly moved by any one interested in doing so. 21. The point sought to be made by Mr. Khare is attractive and plausible. But since we have held Rule 4 (5) to be ultra vires the rule-making power, we do not wish to express a concluded opinion on this point. 22. Mr. Khare invited our attention to the observations of the learned single Judge in the case of Thakur Prasad Singh that it is admitted by the petitioner as well as by the respondents that the names of the electors were written on the back of the ballot papers issued to the voters. Learned counsel urged that the, learned Judge was in error in holding that the petitioner had admitted this fact. In the writ petition as well as in arguments the petitioner's case was that the Assistant Returning Officer had never written any names on the back of the ballot papers at the time they were issued, to the voters. The appellant had been screaming that the Assistant Returning Officer had written names of the voters on the back of the ballot papers after the declaration of result in collusion with respondent No. 5 who was a defeated candidate. In support it has been stated that no objection was taken by any candidate at the time of counting of votes on the ground that the names of the voters were written on the back of the ballot papers, nor did any of the voters notice that anything was written on the back of the ballot papers at the time they were issued to them for voting. It is evident that the question was controversial and if the appellant had been given an opportunity of hearing he would have raised these pleas and tried to establish them. It is evident that the question was controversial and if the appellant had been given an opportunity of hearing he would have raised these pleas and tried to establish them. If he had proved that the ballot papers did not bear any names on their back when they were issued to the voters, no one could have said that a patent mistake had been committed. If it had been established that the Assistant Returning Officer did this after the declaration of results, the election could not have been cancelled. On the contrary an explanation could have been called from the Assistant Returning Officer for his misconduct. Even the Assistant Returning Officer in his report to the Director mentioned that though he wrote down the names of the voters on the back of the ballot papers Instead of on the counter-foils, because he misunderstood the Hindi term of counter-foil used in the rules, yet he also stated that nonetheless this mistake did not cause any violation of the secrecy of the election, because no one ever noticed the names on the back of the ballot papers. The Directer in his impugned order has not considered this aspect while holding that the secrecy of the ballot papers was violated and this constituted a patent mistake. The facts of this case show that a decision that a patent mistake had been committed is likely to depend upon decision of controversial questions of fact which in a dispute relating to elections cannot adequately and fairly be resolved in the cloistered chambers of an executive official, behind the back of the affected parties. 23. To sum up, we hold that rule 4(5) was and is ultra vires the powers of the rule-making authority of the State Government. It is also void for violating the guarantee of equality under Art. 14 of the Constitution. The Director had no power to interfere with the declaration of results or to cancel the elections. 24. In the result, both the appeals, succeed and are allowed. The Judgment of the learned single Judge are set aside. The writ petitions are allowed and the impugned orders of the Director are quashed, with costs.