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1984 DIGILAW 7 (KER)

ANNAMMA v. ELSAMMA

1984-01-06

BHASKARAN NAMBIAR, K.BASKARAN

body1984
Judgment :- 1. This writ appeal raises a question relating to the nature of notice contemplated under R.64 of the Kerala Panchayats (Election of Members) Rules, 1962; (the Rules) In effect, the question is, where there is equality of votes between any two or more candidates, the Returning Officer, in terms of the rule, should give notice in writing or it would be sufficient to give-oral intimation, before he proceeds to draw lots to decide who among the candidates is or are to be declared to have been duly elected. 2. In the election to the Panchayat held, each of the petitioner in O.P. No. 5569 of 1981-M and.the first respondent had polled 565 votes; and because of the tie, the first respondent in the writ petition was declared elected by the Returning Officer by drawing lots. The writ petitioner took up the matter in O.P. (Election) 62 of 1980 before the 3rd respondent-Munsiff under S.22 of the Kerala Panchayats Act, 1960 (the Act) read with R.5 of the Kerala Panchayats (Decision of Election Disputes) Rules, 1963. The Writ Petition has been directed against the dismissal of the Election Petition; and that Writ Petition having been allowed this Writ Appeal has been preferred by the 1st respondent in the Writ Petition. 3. The question relating to the drawing of lots to decide as to who between the two candidates who polled equal number of votes was to be declared elected is found to have been discussed by the third respondent-Munsiff in Para.13 to 15 of Ext. P-1 order, which has been under challenge in the Writ Petition. Summing up the discussion, the finding recorded in Para.15 reads as follows: "In this case, I have already found that the 1st respondent was present when the lot was drawn. Pw.3 the Returning Officer deposed that he has intimated the petitioner and the first counter-petitioner that he is going to draw lots for solving the problem. The petitioner herself has stated that she suggested that the deadlock must be solved under R.64 of the Panchayats Election Rules. Hence I find that the petitioner had notice about the drawing of lots So it is clear that the Returning Officer has announced the result after drawing the lots. Hence I find that the Returning Officer has performed his duties under R.64 of the Panchayats Election Rules and his action was legally correct. Hence I find that the petitioner had notice about the drawing of lots So it is clear that the Returning Officer has announced the result after drawing the lots. Hence I find that the Returning Officer has performed his duties under R.64 of the Panchayats Election Rules and his action was legally correct. So the above points are found accordingly." 4. The factual finding by the 3rd respondent-Munsiff that the writ petitioner had intimation regarding the Returning Officer proceeding to draw lots to decide as to who, between the writ petitioner and the appellant herein, should be declared to have been elected; that lot was drawn in her presence; that the result has been in favour of the appellant herein; and that she has been declared to have been duly elected, could not be assailed in this writ petition. The only question that could be gone into in the writ proceedings is whether the declaration is vitiated by the admitted fact that no notice in writing regarding the Returning Officer proceeding to draw lots to decide the issue was given to the writ petitioner. The learned judge took the view that no notice in writing having been given with respect to the intention to draw lot, the declaration was vitiated, and therefore, quashed the declaration and directed the 3rd respondent to decide the matter afresh after issue of notice in writing to the writ petitioner. 5. R.63 and 64 of the Rules read as follows: "63. Declaration of result of election, When the counting of votes has been completed the Returning Officer shall forthwith complete the entries in Form XIII and shall subject to the provisions in R.64 declare to be elected the candidate to whom the largest number of valid votes has been given." "64. Drawing of lots In case of equality of votes: If there is an equality of votes between any two or more candidates, the Returning Officer shall, after notice to the candidates or their authorised agents if present, decide by drawing lots in such manner as he may deem fit which of the candidate or candidates he shall declare to have been elected." The question is, what is the real import of the expression "after notice to the candidates or their authorised agents". The learned judge took the view that notices in terms of S.113 of the Act are to be in writing, and therefore, the issue of notice in writing is a mandatory requirement of R.64 of the Rules. Sub-section (1) of S.113 of the Act reads as follows: "113. Form of notices and permission, time for complying with notices, orders etc. and powers to enforce them. (1) All notices and permissions given, issued or granted as the case may be, under the provisions of this Act shall be in writing." From the heading of the section and the provisions contained in sub-sections (2) and (3) of S.113, it is fairly clear that the provisions contained in S.113 are made with particular reference to Form of notices, permission and time for complying with notices etc. under the provisions of the Act. It may be noticed that the expressions "given, issued or granted, used in sub-section (1) of S.113 of the Act are absent in R.64 of the Rules. Moreover, the rule does not provide that in all cases notices should be issued. The requirement of notice is only where the candidates or their authorised agents are present at the place. The purpose of the provision in regard to notice is to ensure that as far as possible the process of drawing lots should be in the presence of the contesting parties. That object could be achieved by giving oral intimation or notice in writing. No better purpose could be achieved by giving notice in writing before drawing lots instead of oral intimation before the lots are drawn. Where the lots were drawn in the presence of the candidates concerned or their authorised agents, who had oral intimation, but no notice in writing, they could not be heard to say that they were in any way materially prejudiced for want of notice in writing. We are, therefore, of the opinion that where the Returning Officer gave oral intimation to the candidates and the lots were drawn in their presence, the provisions of R.64 of the Rules could be deemed to have been satisfied. We are also of the opinion that issue of notice could only mean intimation to the candidates or their authorised agents, not necessarily notice in writing. We are also of the opinion that issue of notice could only mean intimation to the candidates or their authorised agents, not necessarily notice in writing. According to us, the notice is not a mandatory requirement or a condition precedent to the draw of lots, as the rule itself makes it clear that notice need be given only in case the candidates or their authorised agents were present. In any event, where the draw was in the presence of the contesting candidates or their authorised agents, the declaration of the election based on the result of the draw could not be challenged on the ground that there was no notice to unsuccessful candidate. 6. The contention of the counsel for the writ petitioner was that in view of the provisions contained in S.20 of the General Clauses Act, 1897 (Act 10 of 1897), which corresponds to S.19 of the Interpretation and General Clauses Act, 1125, the meaning of the expression'notice' in S.113 of the Act should be assigned to that expression in R.64 of the Rules. S.20 of the General Clauses Act, 1897, reads as follows: "Where, by any Central Act or Regulation, a power t6 issue any notification, order, scheme, rule, form, or bye-law is conferred, then expressions used in the notification, order, scheme, rule, form, or bye-law, if it is made after the commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act or Regulation conferring the power." It has to be noticed that sub-section (1) of S.113 is not a provision giving definition to the expression 'notice'. At best, what could be said is that it is a provision which prescribed the procedure to be followed in giving, issuing or granting notices and permissions. The provisions contained in S.20 of the General Clauses Act could not, therefore, be imported for the purpose of finding the meaning of the expression 'notice' used in R.64 of the Rules, and S.113(1) of the Act has no bearing to the question. 7. As Laid down by the Supreme Court in Vashist Narain v. Dev Chandra (AIR. 1954 SC. 513), the Onus of proving that the result of the election has been materially affected due to existence of certain facts is on the petitioner who challenges the result of the ; election. 7. As Laid down by the Supreme Court in Vashist Narain v. Dev Chandra (AIR. 1954 SC. 513), the Onus of proving that the result of the election has been materially affected due to existence of certain facts is on the petitioner who challenges the result of the ; election. In this case, the petitioner who was the election petitioner before the 3rd respondent, has miserably failed to prove that the result of the election was materially affected by the fact' that he had only oral intimation, not a notice is writing, in regard to drawing of lots. As already pointed out, the result would have been the same when the lots were drawn in his presence, whether his presence on the occasion was as a result of the oral intimation received by him or as a result of notice in writing served on him. We are of the opinion that the arguments advanced by the writ petitioner are of hyper technical in nature, which has no bearing to the result of the election. 8. In this context, it would be worthwhile to notice the provisions contained in S.65 of the Representation of the People Act, 1951, (43 of 1951), in regard to equality of votes, which reads as follows: "65. Equality of votes. If, after the counting of the votes is completed, an equality of votes is found to exist between any candidates, and the addition of one vote will entitle any of those candidates to be declared elected, the Returning officer shall forthwith decide between those candidates by lot and proceed as if the candidate on whom the lot falls had received an additional vote." That section does not in terms require any notice to be given, much less a notice in writing to be given to the candidates, though that fact by itself is not a conclusive factor to. decide that R.64 of the Rules does not contemplate a notice in writing. decide that R.64 of the Rules does not contemplate a notice in writing. The absence of a provision with respect to notice at all in the relevant provision of the Peoples Representation Act and the restricted requirement of giving notice under R.64 itself, lend support to the contention of the appellant that the notice contemplated, particularly a notice in writing, is not a mandatory requirement of the rule and that if it is admitted or proved that the candidates had knowledge of the intention of the Returning Officer to draw lots, it should be deemed to be sufficient compliance with the requirement of the Rules. 9. Craise on'Statute Law', Seventh Edition, at page 262, states as follows: "Except as to time, there is no general rule, for while on the one hand we find that enactments expressed in negative and prohibitory language are not universally considered as being absolute, on the other hand enactments expressed in merely affirmative language have sometimes been held to be so. This was plainly stated by Lord Campbell in Liverpool Borough Bank v. Turner ((1861) 30 L.J. Ch. 379) with regard to enactments expressed in merely affirmative language. 'No Universal rule' said he, 'can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.' In Howard v. Bodington ((1877) 2 P. D. 203, 211), Lord Campbell, added as follows: 1 believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory. I have been very carefully through all the principal cases, but upon reading them all the conclusion at which I am constrained to arrive is this, that you cannot glean a great deal that is very decisive from a perusal of these cases. They are on all sons of subjects. I have been very carefully through all the principal cases, but upon reading them all the conclusion at which I am constrained to arrive is this, that you cannot glean a great deal that is very decisive from a perusal of these cases. They are on all sons of subjects. It is very difficult to group them together, and the tendency of my mind, after reading them, is to come to the conclusion which was expressed by Lord Campbell in the case of Liverpool Borough Bank v. Turner (1861) 30 L.J. Ch. 379). 10. Under S.22(1)(d)(v) of the Act, on the application made by any person qualified to vote at the election, within 15 days after the declaration of the result of the election, if the Munsiff, after such enquiry as he considers necessary, is satisfied that the result of the Election, in so far as it concerns the returned candidate, has been materially affected by non-compliance with the provisions of the Act or any Rules made thereunder, may, subject to the provisions of S.21 of the Act, declare the election of such member to be invalid, and such declaration shall be final. To attract the provisions of the clause referred to above, two material requirements to be satisfied are: (1) there has been a non-compliance with the provisions of the Act or any Rules framed thereunder; and (2) because of.the non-compliance, the result of the election, insofar as it concerned the returned candidate, has been materially affected. In the absence of a plea that there was no notice to the writ petitioner (election petitioner) and in face of the categorical finding by the 3rd respondent Munsiff that Pw. 3, the Returning Officer, had intimated the writ petitioner about his intention to draw lots to resolve the deadlock arising out of equality of votes, and in the light of the evidence given by pw. 6 as to the manner, in which the lots were drawn in the presence of the writ petitioner, there is no material to hold that there was any non compliance With the provisions of R.64 of the Rules so as to materially affect the result of the election. 11. The reasoning that whenever there was non-compliance with the provisions of the Act or the Rules framed thereunder, the election is liable to be held invalid is not correct. 11. The reasoning that whenever there was non-compliance with the provisions of the Act or the Rules framed thereunder, the election is liable to be held invalid is not correct. Even according to S.22(1)(d)(iv) of the Act, it is only in cases where, because of the non-compliance of the provisions of the Act or the Rules framed thereunder, the declaration of the results has been materially affected, the election has to be declared invalid by the Munsiff who decided the election petition. The soul of the provision, if we may say so, lies in the rider "if the declaration Of the result has been materially affected", and if the Munsiff loses sight of that fact, the decision reached by him could not be upheld. We may, therefore, say that the 3rd respondent Munsiff has correctly applied the spirit of the law to the facts of the case. 12. The requirements prescribed under the Kerala Panchayats (Election of Members) Rules, 1962, include the Forms of Notices under R.10,12,15, 20. 23, 25, 26, 30, 35, 38, 44(2), 47 and 58. It is to be noted that there is conspicuous absence of a form of notice under R.64 of the Rules; and this lends support to the reasoning that the requirement of the rule is notice, not a notice in writing. 13. If the argument is that by virtue of the provisions contained in S.113 read with S.19 of the Interpretation and General Clauses Act, 1125, (corresponding to S.20 of the Central Act), it is necessary that notice in writing has to be issued whenever the expression 'notice' occurs in the Act or in the Rules framed thereunder, the requirements in R.18(1),18(3), 23, 26, and 32(1)(a) of the Rules that the notice under those rules are to be in writing by express words or by necessary implication, would be redundant. It will also be unreasonable to think that the framers of the rules, who have made it clear that the notices under the rules mentioned above, have to be in writing, would have omitted to state so with respect to the notice contemplated under R.64 of the Rules, if the real intention of the framers of the Rules was that a notice under R.64 also was to be a notice in writing. That also is another indication that the framers of the Rules did not intend that the notice under R.64 is to be in writing. In the absence of specific provision, and in case of doubt, it is the rule of commonsense that has to be applied. There could be no hard and fast rule that the expression 'notice' used in a statute should invariably mean formal intimation; it could as well be informal intimation. For the same reason, notice could include constructive or informal notice. 14. In the factual background of the case, and in the light of the foregoing discussion on the question of law, we have absolutely no hesitation to hold that the 3rd respondent-Munsiff was perfectly justified in upholding the declaration of the result made by the Returning Officer. In this view, with due respect, we find it difficult to agree with the decision of our learned brother, which has, by now, been reported in 1982 KLT. 662 (Eliamma v. Annamma). The result, therefore, is that we allow the appeal, setting aside the judgment under appeal and restoring Ext.P1 order of the 3rd respondent-Munsiff, declaring that the appellant was duly elected. In the circumstances of the case, there will be no order as to costs.