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2001 DIGILAW 269 (CAL)

SAMIR KUMAR ROY CHOWDHURY v. UNION OF INDIA

2001-05-11

A.K.MATHUR, GIRISH CHANDRA GUPTA

body2001
AHOK KUMAR MATHUR, C. J. ( 1 ) THIS is an appeal directed against the order passed by a learned single Judge dated 5-2-2001 whereby the learned single Judge has dismissed the writ petition and held that there is no invalidity in conduct of the election of Council of Asiatic Society. Learned single Judge has interpreted the Regulation 37 of the Asiatic Society. Learned single Judge has held that stipulation at the bottom of the ballot paper as regards the mode of disenfranchising of the official sponsored candidates cannot be held to be illegal or invalid as this practice has been followed for quite sometime. It is also held that since petitioners have also taken part in the election, therefore, it is not open for them to challenge it now. He has also negatived the contention that the Supervisors have unfairly interfered with in the election process. ( 2 ) HOWEVER, for disposal of this Appeal brief facts may be stated. The petitioners are all members of the Asiatic Society and they contested the election for constitution of the Council of Asiatic Society as unofficial candidates. Out of 20 posts there were 15 unofficial candidates and petitioners were amongst them who were defeated in the said election which was held on 15/05/2000 in the 216th Annual General Meeting of the Asiatic Society. These writ petitioners filed the writ petition and prayed that a writ of mandamus be issued to the Respondents to cancel election of the office-bearers of the Council. A special officer be appointed to take charge of all ballot papers relating to the election of the office-bearers held on 15/05/2000 for the purpose of recounting in accordance with law. The writ petition was contested by the respondents and they denied the allegation. Hence the learned single Judge dismissed the writ petition. Aggrieved against the aforesaid order of the learned single Judge the present appeal has been filed. ( 3 ) NO useful purpose will now be served by examining the validity or invalidity of election which was held on 15/05/2000 because the tenure of this election is going to expire on 14th May, 2001. Therefore, we do not propose to interfere with the order passed by the learned single Judge so far as the election held on 15/05/2000 is concerned. Therefore, we do not propose to interfere with the order passed by the learned single Judge so far as the election held on 15/05/2000 is concerned. However, learned counsel for the appellant contended that fresh elections are scheduled to be held shortly and some legal interpretation of Regulation 37 is required to be reconsidered as it is going to affect ensuing election. It was contended that stipulation in the ballot paper for striking the name of official sponsored candidate is not necessary for substitution of new candidate. The stipulation in the ballot paper reads as under :- 'please strike out any name if not approved of and substituted by name of any eligible member of the society. " ( 4 ) IT was contended by the learned counsel for the appellant that as per the procedure laid down in Regulation 37 the names of the official candidates are sponsored for office-bearers as well as for the members of the Council and it is open for voter not to approve the candidature of officially sponsored candidate and he can substitute his candidate in blank column. The contention of learned counsel for appellant is that it is not necessary to score out the names of the official candidates before substituting the names of the candidates in the blank column. Therefore, it was. . . . . . . contended by the learned counsel that appending that note under the ballot paper was totally wrong and against the spirit of Regulation 37. It was submitted by learned counsel that as a result of this note many ballot papers were rejected and this illegality will further be perpetuated if it is not clarified. Mr. Saktinath Mukherjee, learned counsel appearing for the respondents submitted that this note was appended by virtue of a resolution passed by the Council at its meeting on 20/04/2000 for a proper guideline for conduct of the election and it was proposed to introduce a note in the ballot paper to strike out the name of the official candidates while substituting alternative name in the blank column. The question agitated by the learned counsel for the appellant is that Regulation 37 nowhere requires the striking out the names of the officially sponsored candidates by substituting the name/names of candidates in the blank column of his choice. The question agitated by the learned counsel for the appellant is that Regulation 37 nowhere requires the striking out the names of the officially sponsored candidates by substituting the name/names of candidates in the blank column of his choice. The intention of the voter is clear when he fills name of the candidate of his choice in the blank column that he wanted to vote for the candidate whose name he has mentioned in the blank column. Therefore, learned counsel submitted that appending of this note was not necessary because it is likely to create more confusion while clarifying the same. ( 5 ) IN order to appreciate the contention raised by learned counsel we may reproduce Regulation 37 which reads as under :- 37. The council shall prepare a list of the names of those persons whom it recommends to be elected as President, Vice-Presidents, General Secretary, Treasurer, Additional Secretaries, and other members of the Council for the ensuing year, and before the first of April, such lists shall be printed, and a copy sent to each member of the society, and at the Annual General Meeting, voting papers bearing the same list of names but with a blank column for such substitution as any member may wish to make shall be supplied to the members present. The manner of election shall be as follows : (A) Two scrutineers shall be appointed by the Chairman with the approbation of the majority of the members present. (b) Each member present shall deliver his voting paper unsigned, but folded and with such substitution he may wish to make into one box, and a form bearing a certificate that he has recorded his vote into another. (c) The scrutineers, after counting the voting papers and certificates, shall, if they correspond in number proceed to examine the voting papers and report to the Chairman the names of those having a majority of votes for composing the Council of the society, and these names shall be announced from the chair. (d) In the case of the number of certificates being different from that of the voting papers, the election shall be null and void and a fresh election shall immediately be held. (d) In the case of the number of certificates being different from that of the voting papers, the election shall be null and void and a fresh election shall immediately be held. (e) If any voting paper contains more than the proper number of names, or include the name of a candidate who is not eligible, it shall be void for uncertainty and shall not be regarded by the scrutineers. (f) If there be an equal number of votes for any two or more candidates, the scrutineers shall announce the fact, and the Chairman shall proceed to decide by lot which candidate shall have the preference. No member of the society shall continuously serve on the Council for more than five consecutive years. No person shall hold the office of President consecutively for more than two years and that of General Secretary and/or Treasurer, consecutively for more than three years : provided always that of the Members of the Council the four who have served longest on the Council without interruption shall not be eligible for re-election, until after the lapse of one year, as Members of the Council. Note : This Clause and the restrictions hereunder shall become effective after the constitution of the Council in 1973. " ( 6 ) ACCORDING to Regulation 37 the Council is required to prepare a list of the names of persons whom it recommends to be elected as President, Vice Presidents, General Secretary, Treasurer, Additional Secretaries, and other members of the Council for the ensuing year. The ballot paper shall bear the name of such candidates but with a blank column for such substitution as member may wish to make it. It further contemplates that the two scrutineers shall be appointed by Chairman, each member shall be supplied unsigned ballot paper in a folded manner for such substitution as the member may wish to make into one box. It further contemplates that the scrutineer shall scrutinize the votes and report to the Chairman the names of those candidates who have secured majority for composing the Council of the society. However at the same time it has given authority to the scrutineer that in case number of certificates being different from that of voting papers the election shall be null and void and fresh election shall immediately be held. However at the same time it has given authority to the scrutineer that in case number of certificates being different from that of voting papers the election shall be null and void and fresh election shall immediately be held. It further says that if any voting papers contain more than number of names or include the names of the candidates who are not eligible it shall be void for uncertainty and shall not be regarded by the scrutineers. In case of two candidates securing same number of votes then Chairman shall proceed to decide by lot that which candidate shall have the preference. There are two provisos to this Regulation 37. The first proviso lays down that no member of society shall continuously serve on the Council for more than 5 (five) consecutive years. No person shall hold the office of President consecutively for more than two years and that of a General Secretary or Treasurer consecutively for more than three years. Similarly second proviso further provides that four members of the Council who have served longest without interruption shall not be eligible for re-election until after the lapse of one year as member of the Council. ( 7 ) THEREFORE, in this light we have to examine whether that stipulation in the ballot paper is a valid stipulation or not. A bare reading of the Regulation makes it clear that what is required is substitution of candidate's name whom the voter wants to propose for a member of the Council. Name of such candidate is required to be given in the blank column. Therefore a bare reading of this provision makes it clear that it nowhere contemplates that when the voter wants to propose a name of another person then the person officially sponsored, is required to score out. According to the Regulation 37 what he is required to do is to substitute the name of the candidate whom he wishes to sponsor for the office of the Council. This Regulation does not contemplate that the name of the official candidate is required to be scored out, therefore, the Resolution passed by the Council for appending this condition and to reject the ballot in the event of not scoring out the name of the official candidate cannot be countenanced. This Regulation does not contemplate that the name of the official candidate is required to be scored out, therefore, the Resolution passed by the Council for appending this condition and to reject the ballot in the event of not scoring out the name of the official candidate cannot be countenanced. The Regulation itself says that in the event of any voting paper contains more than the proper number of name or include a name of a candidate who is not eligible it shall be void for uncertainty and shall be rejected by the scrutineer. Therefore, the scrutineer has been given power to reject the particular ballot of a voter in the event of sponsored candidate being not eligible or it contains more than proper number of names. Therefore, the stipulation which has been incorporated in the ballot is contrary to the provisions of Regulation 37 and the rejection of the ballot by the scrutineer on that count cannot be treated to be correct. The Council cannot lay down the condition for rejection of ballot other than laid down in the Regulation by this executive fiat. Therefore, we hold that as per Regulation 37 it is not necessary for a voter to score out the name of the official candidate. The ballot on that count cannot be rejected. All that the voter is required to substitute the name of the candidate whom he wants to sponsor against the name of the official candidate in the blank space provided against the official candidate. ( 8 ) SECONDLY learned counsel for the appellant has submitted that as per second proviso four members of the Council who have served longest without interruption have to retire and they are only eligible to contest for the election after a lapse of one year. This proviso is very clear and we need not to dilate it any further. Suffice it to say that the four longest senior members of the Council have to retire and they are only eligible after a lapse of one year. No such situation is present before us because we are told that election is scheduled to be held shortly. It is for the Respondents to see the implication of the second proviso at the time of conducting of the election. No such situation is present before us because we are told that election is scheduled to be held shortly. It is for the Respondents to see the implication of the second proviso at the time of conducting of the election. ( 9 ) HENCE, as a result of the above discussion we only allow this appeal to the extent that the stipulation in the ballot paper that the voter has to score out the names or the names of the official candidates while substituting the name sponsored by him is not necessary, and no ballot paper should be rejected on that count. No order as to costs. ( 10 ) GIRISH CHANDRA GUPTA, J. , I agree. Appeal partly allowed.