BALAKRISHNA, J. ( 1 ) THE material facts of the case are as follows: the petitioner who is a member of the hunasewadi Mandal Panchayat, Mysore District, having been elected as a nominee of the congress-I party at the election held on 20-1-1987, is aggrieved by the resolution adopted at a meeting of the Mysore Zilla Parishad of which respondent-2 is the Adhyaksha, authorising him to make nominations to all mandal Panchayats in the District. According to the petitioner, it is only the Zilla parishad which is empowered to make nominations under Section 5 (3) of the Karnataka Zilla Parishads, Taluk Panchayats, mandal Panchayats and Nyaya Panchayats act, 1983 ('the Act' for short) and the nominations of respondents 7 and 8 are not valid in law since the said nominations were made by the Adhyaksha. The additional grievance of the petitioner is that these two nominees took part in the voting for the election of the Pradhan and Upa-Pradhan and in the election the votes cast by these two nominees tilted the election in favour of respondents 5 and 6. According to the petitioner, the election of respondents 5 and 6 as Pradhan and Upa-Pradhan is invalid and cannot be sustained in law. ( 2 ) ON the other hand, according to the learned Counsel appearing for respondents 5 and 6, at the time when elections to the posts of Pradhan and Upa-Pradhan were being held, 12 persons who had the right to vote boycotted the election and walked out of the place of election without participation in the voting. As a result, 13 voters who were present at the time of the election took part in the vote and tendered their votes in favour of respondent 5 who was declared elected as the Pradhan. According to the learned counsel, these voters who walked out of the election hall did not come back and on the same day after a brief interval of time election to the post of Upa-Pradhan was held. In this election, the same number of votes were registered in favour of respondent 6 with 12 voters having kept away from the election having boycotted the same and having left the venue of the election earlier when the pradban was being elected. In this election, the same number of votes were registered in favour of respondent 6 with 12 voters having kept away from the election having boycotted the same and having left the venue of the election earlier when the pradban was being elected. ( 3 ) THE contention of the learned Counsel appearing for the petitioner is that though the 12 voters did not participate in the voting and staged a walk out at the time of the election of Pradhan, they were present when the election of the Upa-Pradhan took place, but they did not exercise their votes. In other words, the contention is that they remained neutral in the election though they were present at the time of voting with the result that the Upa-Pradhan was elected having secured 13 votes. ( 4 ) THE entire controversy was narrowed down to the point as to whether or not 12 persons who were stated to have remained neutral at the time of the election of the upa-Pradhan were actually present at the time of voting and whether the election of the Upa-Pradhan deserves to be upheld. ( 5 ) SUB-RULE (8) of Rule 4 of the Karnataka mandal Panchayats (Election of Pradhana and Upa-Pradhana) Rules, 1987 ('the Rules' for short) reads as follows:"the prescribed officer shall cause a record of the minutes of the meeting made which shall contain the names of all the members present and. in the case of a division the manner of their voting including abstentions. The minutes shall be signed by the prescribed officer and shall be made available to any member for inspection. Explanation:- For the purpose of this rule "members present" means members present at the meeting and whose names have been recorded before the first motion for the election of Pradhana or upa-Pradhana, as the case may be, is put to vote under sub-rule (5)". ( 6 ) THE effect of the said rule is that the members present is an expression which connotes the presence of members at the meeting or the members actually present at the meeting whose names have been recorded before the first motion for the election of pradhan or Upa-Pradhan, as the case may be. ( 6 ) THE effect of the said rule is that the members present is an expression which connotes the presence of members at the meeting or the members actually present at the meeting whose names have been recorded before the first motion for the election of pradhan or Upa-Pradhan, as the case may be. A perusal of Annexure-E which is an extract of the proceedings of the election to the post of Pradhan and Upa-Pradhan shows that in the election held for the post of Pradhan, c. P. Ningegowda who is respondent-5 in this writ petition, secured 13 votes and 12 voters remained neutral and, therefore, C. P. Ningegowda was declared as elected to the post of Pradhan and, thereafter, the second motion was taken up for consideration. One of the contestants by name Doddappagowda and his proposer by name H. C. Thammaiah raised objections regarding the election and proceeded to boycott the election and walked out pf the meeting and the total number of voters who walked out of the meeting were 12. After this event took place, ensued the election to the post of Pradhan and Upa-Pradhan. The minutes of the proceedings in relation to the election of Upa-Pradhan show that the nominations or proposals of the names of the contestants for the election were invited for proposal and acceptance and objections came to be recorded as and when they were made. The date of receipt of the nomination, the time of receipt, the name of the candidates, the name of the proposer, the name of the accepter and the remarks were recorded. Thereafter, the recording of the proceedings shows that among the candidates who put forward their candidature for the election, the valid nominations were taken up and elections were held. In the next column, the names of the candidates, the person in whose favour voting was made and the voting made against the candidate and the persons who remained neutral were recorded. In the column relating to persons who remained neutral, two expressions have been used. In Kannada, they are described as ^iw and: SSlwaido Both the expressions are used in this column. Under this heading, 12 names of voters are shown. Under the column voting in favour of the candidate by name Lokesh, the names of 13 voters have been shown. In the column relating to persons who remained neutral, two expressions have been used. In Kannada, they are described as ^iw and: SSlwaido Both the expressions are used in this column. Under this heading, 12 names of voters are shown. Under the column voting in favour of the candidate by name Lokesh, the names of 13 voters have been shown. Thereafter, it is recorded that lokcsh secured 13 votes and, therefore, was declared as elected to the post of Upa-Prad- han of Hunasawadi Mandal Panchayat. ( 7 ) ON the basis of the material which is available in Annexure-E, the recording of which is not disputed by the learned Counsel appearing for the parties but what is disputed being only the interpretation !o be given to the remarks recorded in the proceedings, it is necessary to reason out whether the so called 12 neutral voters were present at the time or voting or whether they did not return to the hall after they left the hall by staging a walk out at the time of election of the Pradhan. ( 8 ) IT is not disputed that the total strength of the members who had a right to vote in the election of Pradhan and Upa-Pradhan was 27 out of which only 25 voters were present before the elections took place on 21-4-1987 at 3 P. M. when the meeting took place. That the election of the Pradhan took place first is not in dispute. That at the time of election and voting, 12 members remained neutral and after protesting and raising objections in regard to the election of the Pradhan, left the venue of the election by staging a walk out. After the conclusion of the election to the post of Pradhan and declaration of the result, the next election was held duly following the procedure prescribed under the Act and the rules. From the minutes of the proceedings, it is clear that only 13 voters exercised their votes in favour of the winner to the post of upa-pradhan and 12 members remained neutral. In the column showing the names of persons who did not exercise the votes in favour of the winning candidates for the post of Pradhan, the description is ^u ri! In the column showing the names of persons who did not exercise the votes in favour of the winning candidates for the post of Pradhan, the description is ^u ri! da : stfoasgdo Similarly, in respect of the column indicating the names of persons who remained neutral in the election to the post of upa-Pradhan, the words used are similar i. e. itizjis : Sskascda. Whereas in the proceedings relating to the election of pradhan, it is clearly mentioned that 12 members boycotted the election and staged a walk out, similar noting or remark is not to be found in the minutes of the proceedings relating to the election of the Upa-Pradhan. That the two elections are independently held of one another, cannot be disputed. The election to the post of Upa-Pradhan was subsequent to the election to the post of the pradhan and they are two separate elections with separate proceedings on record. It is no doubt true that as far as the election of the pradhan is concerned, 12 members who had remained neutral raised some protest or objections in regard to the election of the pradhan, did not participate in the voting and staged a walk out. If the same 12 persons had adopted a similar conduct, there ought to have been a clear recording of such a conduct of those 12 members at the time of the election of Upa-Pradhan also. But such a remark or noting is conspicuous by its absence in so far as the election of the Upa-Pradhan is concerned. The contention of the learned counsel for respondents 5 and 6 that these 12 voters who staged a walk out at the time of the election of Pradhan did not come back and did not participate in the voting in the election of the Upa-Pradhan, does not find support in the minutes of the proceedings of the election. The absence of 12 members at the time of the election of the Upa-Pradhan unless specifically noted and recorded in the proceedings, cannot be a subject matter of speculation and, in my opinion, it would be unsafe to rely upon speculation in the matter of election. Added to this, there is no recording of the absence of these 12 persons even before the commencement of the election when the preliminary procedure leading to the election was in progress. Added to this, there is no recording of the absence of these 12 persons even before the commencement of the election when the preliminary procedure leading to the election was in progress. Either before the election of Upa-Pradhan took place or at the time when the election actually took place or at the time when the declaration of the result was made, nothing prevented the prescribed authority to note the absence of 12 members who, according to the learned counsel appearing for respondents 5 and 6, remained away from the elections and did not return to the venue of the election for participation in voting after they staged a walk out earlier when the election of the Pradhan took place. The possibility that these 12 persons were present at the time of voting and did not exerise their votes remained neutral is a probabilisation which cannot be ruled out unless the prescribed authority had recorded to the contrary noting in writing the absence of the said 12 voters. On the one hand, there is no mention in writing of the absence of these 12 persons in the proceedings relating to the election of upa-Pradhan and, on the other hand, the name of ^uj^da : sdi3sgrfi are mentioned and their strength is 12 in number. In these circumstances, it is difficult for me to accept the argument that 12 persons who walked away from the meeting at the time of the election of the Pradhan never came back and were never present at time when the election of Upa-Pradhan took place. It would be perfectly legitimate to say on the basis of the minutes of the proceedings of the election that these 12 persons remained neutral, but to say that they were never present at the time of election of Upa-Pradhan appears to me, to be rather improbable. There is no material on record which positively indicates the absence of the 12 persons who remained neutral so as to say, without exercising their votes. To be present at the election and not exercising the vote is different from totally abstaining from the election physically by their absence. That these 12 voters by virtue of reasonable probability were present at the election of Upa-Pradhan, but abstained from voting having adopted a neutral stand, is my conviction. To be present at the election and not exercising the vote is different from totally abstaining from the election physically by their absence. That these 12 voters by virtue of reasonable probability were present at the election of Upa-Pradhan, but abstained from voting having adopted a neutral stand, is my conviction. ( 9 ) PROCEEDING on the premise that out of 25 persons who had the right to vote at the election of the Pradhan and Upa-Pradhan, 13 persons voted in favour of the elected pradhan and Upa-Pradhan who are respondents 5 and 6 and 12 voters remained neutral since all the 25 members fell into the category of "members present" as described in explanation to sub-rule (8) of Rule 4 of the rules having been present at the meeting and whose names had been recorded before the first motion for the election of both pradhan and Upa-Pradhan, it has to be held that out of 25 votes both the Pradhan and upa-Pradhan each secured 13 voters in their elections. That the Adhyaksha has no jurisdiction or power to nominate two members under Section 5 (3) of the Act is now a well settled principle of law and the jurisdiction or the power of nomination is vested only in the Zilla Parishad. That is the legal position laid down by a Division Bench of this Court in State of Karnataka v ningappa Ramachandra Gurav, ILR 1988 karnataka 1380, wherein it was held that the adhyaksha cannot be authorised by the Zilla parishad to exercise the power under Section 5 (3) of the Act and it is the Zilla Parishad alone which has to nominate two persons from the Backward Classes. ( 10 ) ADMITTEDLY, in the instant case, nominations were made by the Adhyaksha and not by the Zilla Parishad under Section 5 (3) of the Act. Applying the aforesaid principle, it has to be held that the nominations of the two members viz. , respondents 7 and 8 are bad in law and, consequently, they had no competence to take part in the election and exercise their votes in the election to the post of Pradhan and Upa-Pradhan. If these two votes are not taken into account, both the Pradhan and Upa-Pradhan are deemed to have secured only 11 votes each, out of 25 votes. If these two votes are not taken into account, both the Pradhan and Upa-Pradhan are deemed to have secured only 11 votes each, out of 25 votes. I am, therefore, of the opinion that the election of respondents 5 and 6 to the post of pradhan and Upa-Pradhan is bad in law and, therefore, I allow the writ petition and quash the election of both respondents 5 and 6. ( 11 ) IN view of the fact that the impugned election has been declared null and void, I direct that the Zilla Parishad shall make the two nominations under Section 5 (3) of the act within a period of three weeks from today and, thereafter, hold election to the offices of Pradhan and Upa-Pradhan within a period of three weeks from that date. ( 12 ) AS directed by the Supreme Court in s. L. P. (Civil) Nos. 268 and 269 of 1989 and a connected batch of cases on 21-8-1989, in this case also, if the nominations are not made within a period of three weeks as directed by this Court, then the elections will be held by the prescribed authority. Writ Petitions allowed. --- *** --- .