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2001 DIGILAW 269 (PNJ)

Sudesh Kumar Aggarwal v. State of Punjab

2001-02-27

AMAR BIR SINGH GILL, V.S.AGGARWAL

body2001
JUDGMENT Amar Bir Singh Gill, J. - The petitioner impugns the election of Ashok Kumar, respondent No. 5, as President of Municipal Council, Kapurthala being illegal and seeks issuance of a writ in the nature of mandamus directing respondents No. 1 and 2 to declare his duly elected President of Municipal Council. 2. The election to Municipal Council, Kapurthala was held on 12.1.1998. The petitioner was elected from one of its wards. The notification of the Government notifying the result of the election was issued on 14.1.1998. The first meeting of the constituted Municipal Council as required under rule 3 of the Punjab Municipal (President and Vice President) Election Rules, 1994 (for short to be referred as "1994 Rules"), was convened for 11.4.1998, vide notice dated 7.4.1998 issued by respondent No. 2-Sub Divisional Magistrate, Kapurthala. Rule 3 of the 1994 Rule requires the convening of the first meeting for administering oath to the elected Councillors and for election to the offices of President and Vice President in that meeting. The meeting held on 11.4.1998 was postponed for 12.4.1998, according to the petitioner, at the instance of respondent No. 6, who is the sitting Minister of the State Government and is an ex officio Member of the Council. The petitioner as well as respondent No. 5 filed their nomination papers for the post of President. According to the petitioner, respondent No. 6 was openly and actively supporting respondent No. 5. Since out of 23 Councillors of Municipal Council, Kapurthala, 12 Councillors had sponsored his name for the post of President, therefore, in order to avoid the defeat of respondent No. 5 the election meeting was adjourned sine die without giving any cogent and justified reasons. The petitioner and his supporters i.e. 12 Councillors approached this Court in CWP No. 5606 of 1998 seeking directions from this court in the nature of mandamus commanding the respondent-authorities to hold the election to the offices of the President and Vice President of Municipal Council, Kapurthala under the supervision of independent agency and under strict security and also to provide protection to the lives and properties of the petitioners. The petition came up for hearing on 23.4.1998 and this Court issued notice of motion for 11.5.1998 and the case was adjourned for 20.8.1998. The petition came up for hearing on 23.4.1998 and this Court issued notice of motion for 11.5.1998 and the case was adjourned for 20.8.1998. However, during the pendency of the said writ petition, respondent No. 2 issued an agenda on 8.6.1998 for holding the elections to the offices of President and Vice President of Municipal Council, Kapurthala on 10.6.1998. Since the petitioners in the said writ petition were apprehensive of illegalities as they were threatened to vote in favour of the ruling party candidate i.e. respondent No. 5, therefore, they moved Civil Misc. Application No. 13047 of 1998 on 8.6.1998 for the appointment of an independent observer at the election meeting. A copy of the application is annexed as Annexure P- 1. The said application came up for hearing on 10.6.1998 at 11 a.m. i.e. the day on which the election meeting was fixed by respondent No. 2 and this court while issuing notice of the application to the respondents directed the State Counsel to make sure that some senior officer was deputed to see that the election was held on 10.6.1998 in a fair and impartial manner. The State Counsel immediately contacted Deputy Commissioner, Kapurthala on telephone and conveyed her the directions of this court well before the scheduled time of election meeting. However, no such senior officer was deputed and on the said date i.e. 10.6.1998, the elections to the offices of President and Vice President were conducted, however, much against the rules and without observing any secrecy at the instance of respondents No. 2, 5 and 6. It is further alleged that since the loyalty of certain Municipal Councillors was doubted, they were asked to poll their votes by writing yes as well as no on the ballot papers so as to make it sure that they had polled their votes in favour of respondent No. 5. It was done at the instance of respondent No. 6 who remained present in the meeting hall throughout. He polled his vote after 11 votes were polled in favour of respondent No. 5 and his action demonstrated that no secrecy, whatsoever, was maintained in the election on that day to the office of President. It was done at the instance of respondent No. 6 who remained present in the meeting hall throughout. He polled his vote after 11 votes were polled in favour of respondent No. 5 and his action demonstrated that no secrecy, whatsoever, was maintained in the election on that day to the office of President. It is further alleged that six absolutely invalid votes of respondent No. 5 were counted as valid votes whereas one vote of the petitioner was declared invalid as a result of which respondent No. 5 was illegally declared elected by a margin of one vote only. The petitioner claims that his allegations stand corroborated and established from the fact that on the aforesaid six votes, Municipal Councillors have mentioned yes as well as no whereas as per the mandatory requirement of rule 4(1) of 1994 Rules, voting for the offices of President and Vice President shall be by ballot by writing yes or no on the ballot paper and not yes and no. One vote in favour of the petitioner was also illegally declared invalid since the Councillor who had caste that vote had tick-marked the same instead of writing yes in front of the name of the petitioner. Respondent No. 5 was illegally declared elected on 10.6.1998 itself and on 12.6.1998 the petitioner filed yet another Civil Misc. Application No. 13298 of 1998 in the pending writ petition No. 5606 of 1998. A copy of the said application is annexed as Annexure P-2. On 12.6.1998, this court issued notice of the application for 9.7.1998. The petitioner claims the relief inter alia on the ground that despite the directions of this Court, no senior officer was deputed in the election and the election was held in total disregard of the rules violating secrecy of ballots at the behest of respondents No. 2, 5 and 6. Six Councillors belonged to B.J.P. party whose loyalty was doubted and to ensure that they cast their votes in favour of respondent No. 5, they were asked to mark the ballot papers in the manner that their identity was disclosed. Six Councillors had marked the ballot papers by writing yes or no whereas they were to writ yes or no. Such invalid votes polled in favour of respondent No. 5 were counted as valid. 3. In the written statement filed by respondent No. 5, preliminary objections have been taken. Six Councillors had marked the ballot papers by writing yes or no whereas they were to writ yes or no. Such invalid votes polled in favour of respondent No. 5 were counted as valid. 3. In the written statement filed by respondent No. 5, preliminary objections have been taken. It is stated that in the election held on 12.6.1998, all the 24 Councillors (including the M.L.A. the ex officio Member) were present. It was commenced at 11 a.m. The Convener had explained to all the Councillors the manner in which they were required to cast their votes and any vote if tick-marked was to be declared as invalid and rejected. Out of the total votes polled, 12 were in favour of respondent No. 5 and 11 in favour of the petitioner and as such respondent No. 5 was declared as elected President. Ever since the election, all the ballot papers were lying in a sealed cover with the authorities. Voting being required by ballot, the Convener had also accounted that the Councillors were required to cast their votes by writing yes or no on the ballots. Since there were only two members competing, there was absolutely nothing wrong if on a vote, a person has written yes against one and no against other and, thus, such vote cannot be rejected being invalid as per rule 4(1) of the 1994 Rules and writing yes or no also clarified the intention of the voter. It is further stated that the petitioner has an alternative remedy of filing an election petition under Section 74 of the Punjab State Election Commission Act. On merits, the election of respondent No. 5 as President is claimed to be conducted fairly and as per the rules. Respondent No. 5 has also denied if respondent No. 2 adjourned the election meeting for any extraneous reasons. It is also claimed that in the earlier writ petition, respondent No. 5 was not impleaded and as such, he was not aware of the proceedings before this court. No such information was received by the Returning Officer at the time of election from this Court. 4. In the separate written statement filed by the Sub Divisional Magistrate- respondent No. 2, preliminary objection has been taken that the writ petition does not lie and the election petition is the remedy against the election of respondent No. 5. No such information was received by the Returning Officer at the time of election from this Court. 4. In the separate written statement filed by the Sub Divisional Magistrate- respondent No. 2, preliminary objection has been taken that the writ petition does not lie and the election petition is the remedy against the election of respondent No. 5. The election, according to this respondent, was held in accordance with the rules and strict secrecy was maintained and he had informed the Councillors the manner of casting their votes in accordance with the rules. It is further claimed that the votes wherein yes was written against the name of elected candidate were not contrary to the provisions of the Rules and could have been counted as valid votes. The Rules provide that yes or no has to be written on the ballot paper and it nowhere mentions that if no is written against the other candidates, the vote would become illegal. Rather this would make the intention of voter clear without violating the rules. He denied that no secrecy was maintained. He did not receive any communication of the orders of this Court and the election held on 10.6.1998 was free and fair election. 5. This writ petition came up for motion hearing on September 2, 1998. However, the same was not entertained with the observations that "since disputed questions of facts are involved, we do not find any merit to interfere in our extraordinary writ jurisdiction under Articles 226/227 of the Constitution of India". Against this order, the petitioner filed a Civil Appeal No. 642 of 1999 and following order was passed by the Honble Bench of the Supreme Court :- "Leave granted. The order on the special leave petition stated that matter might be disposed of at the S.L.P. stage by an order restoring the writ petition to the file of the High Court to be heard and disposed of on merits. The High Court, in the order under challenge took the view that there were disputed questions of fact involved in the writ petition and, therefore, declined to entertain it. The High Court, in the order under challenge took the view that there were disputed questions of fact involved in the writ petition and, therefore, declined to entertain it. Having heard learned Counsel, we are of the view that the writ petition does require to be heard and disposed of on merits, but we make it clear that it shall be open to the successful candidate to urge that there is an alternative remedy available, although it must be pointed out that the State has taken the view, agreeing with the appellant, that there is none. We do not say any more lest it should prejudice the case on either side. The civil appeal is allowed. The impugned order is set aside. The writ petition (C.W.P. No. 13542 of 1998) is restored to the file of the High Court to be heard and disposed of on merits expeditiously. No order as to costs." 6. The counsel for the parties have been heard. 7. The election has been assailed mainly on the ground that on account of the pressure exerted by respondent No. 6 who is the sitting Minister of the State Government, no secrecy of ballot was maintained and in order to ensure that the Councillors marked their ballot in favour of the respondent No. 5, respondent No. 6 had asked the Councillors to support respondent No. 5 by writing yes and no both on the ballots since he was doubting their support and that the Returning Officer also succumbed to his pressure and counted invalid votes in favour of respondent No. 5 which vitiated the entire election. It is also the allegation of the petitioner that initially the first meeting was not convened in accordance with the mandate of rule 3 of the 1994 Rules. Since the meeting was not convened within the stipulated period and so also the same was postponed sine die on 12.4.1998 without holding the election to the offices of President and Vice President, it compelled the petitioners to approach this Court for issuance of directions for holding of the election meeting. Rule 3 of the 1994 Rules provides as under :- "3. Manner of election. Rule 3 of the 1994 Rules provides as under :- "3. Manner of election. - The Deputy Commissioner or any Gazetted Officer authorised by him in this behalf (hereinafter in this rule referred to as the Convener) shall, within a period of fourteen days of the publication of the notification of election of members of a newly constituted Municipality, fix, by giving not less than forty eight hours notice to be served at the ordinary place of residence of all the elected members, a date of convening the first meeting of the elected members of such municipality by stating in the notice that at such meeting the oath of allegiance will be administered to the members present and also stating that the President and the Vice President or Vice Presidents as the case may be, will be elected." 8. Municipal Council, Kapurthala was constituted by notification dated 14.1.1998. According to rule 3 re-produced above, the first meeting should have been convened within 14 days of the issue of notification. Notice was issued on 7.4.1998 fixing 11.4.1998 as the date of first meeting and was adjourned to the next date whereafter it was adjourned sine die. According to the respondents, no such date was fixed on 11.4.1998 and it was only fixed on 12.4.1998. Although the Returning Officer in his written statement has stated that neither any meeting was called for 11.4.1998 nor it was postponed to 12.4.1998, however, this plea is falsified by the notices, Annexures P-3 and P-4 which were issued by respondent No. 2 himself on 7.4.1998 fixing the first meeting on 11.4.1998 at 11 a.m. Annexures P-3 and P-4 being the photo copies of the originals also carry the signatures of respondent No. 2. The plea taken in the written statement stands contradicted from the documents Annexures P-3 and P-4. The meeting held on 12.4.1998 also ended in a fiasco because unruly scene was created in the meeting as per the copy of the proceedings Annexure R-2/1. 9. The 1994 rules require that the voting in the election of President and Vice President has to be by ballot. Rule 4(1) reads as under :- "4. Voting by ballot. - (1) The voting for the offices of President and Vice President or Vice Presidents, as the case may be, shall be by ballot by writing yes or no on the ballot paper. Rule 4(1) reads as under :- "4. Voting by ballot. - (1) The voting for the offices of President and Vice President or Vice Presidents, as the case may be, shall be by ballot by writing yes or no on the ballot paper. Special ballot papers shall be used for such voting each bearing an official mark to be placed thereon by the Deputy Commissioner." 10. According to respondent No. 2, on the date of meeting, he had explained the requirement of the above rule and that the Councillors were to write yes or no on the ballot papers besides any ballot if tick-marked was to be rejected. Voting in the election of President and the Vice President is by ballot which requires and implies secrecy of voting. So also the rule 4(3) of 1994 Rules makes incumbent on the person presiding over the meeting to ensure secrecy of ballot. It reads as under :- "4(3) The person presiding over the meting convened under rule 3, shall ensure utmost secrecy while recording the wishes of the members as laid down in sub-rule (2) and shall keep a brief record of each such instance, without indicating the manner in which the vote has been cast." 11. Similarly, Section 83 of the Punjab State Election Commission Act, 1994 provides as under :- "83. Secrecy of voting not to be infringed. - No witness or other person shall be required to state for whom he has voted at an election." Learned counsel for the petitioner has mainly contended that as per the rule only yes or no was to be written on the ballots by the votes/Councillors and writing of yes and no on the ballot papers would amount to identity the voter besides it would be against the spirit of the rule and that in the election meeting, 6 Councillors from the BJP party were made to write yes and no both to satisfy respondent No. 6 that they had supported the official candidate of the ruling party and that respondent No. 2 counted six votes as valid whereas these were required to be rejected in view of the express statement in the rule. 12. 12. Learned counsel for respondent No. 5 contended that although the rule provides that ballot is to be marked by yes or no by the voter, but writing of no would not amount to any vote since it does not convey the positive intention of the voter in favour of any person and in case the voter has written yes in favour of the candidate whom he is supporting and no against the candidate whom he is not supporting, it would still be a valid voting because the voters intention is clear that he supports one candidate and does not support the other candidate and writing yes and no would amount to convey the intention besides that even if six voters had written yes and no there was no identity of voters and it does not affect the secrecy of voting. 13. A reading of rule 4(1) of the 1994 Rules makes unambiguously clear that the voter has to write yes or no and he is not supposed to write yes and no. It would not in any manner be in accordance with the requirement of the rule. The voter has to write either yes or no and is not required to write both which would not be secret voting in accordance with the rule. The rule requires the voting by ballot and the manner in which the ballot is to be marked. In B.S. Minhas v. Indian Statistical Institute, AIR 1984 SC 363, it has been held that "if an act is required to be done in the manner prescribed, that can only be in accordance with the procedure prescribed otherwise it will not be accepted to have been done at all." 14. Applying the principle laid down by the Supreme Court, no other meaning than the one expressed in the rule itself can be given in respect of the manner of voting in the election to the office of President of the Municipal Council. 15. In order to verify the allegations of the petitioner, the record of the election was summoned and the same has been mutually perused by us. The record is sealed in a parcel which contains four sealed envelopes. First envelope contains 24 Nos. used ballot papers. Second envelope contains one un-used ballot paper. Third envelope contains 25 un-used/blank signed ballot papers. In order to verify the allegations of the petitioner, the record of the election was summoned and the same has been mutually perused by us. The record is sealed in a parcel which contains four sealed envelopes. First envelope contains 24 Nos. used ballot papers. Second envelope contains one un-used ballot paper. Third envelope contains 25 un-used/blank signed ballot papers. Four envelope contains the signatures of all the 24 Councillors against their names in token of receipt of the ballots. The use ballots are in two separate folds showing the votes polled in favour of the candidates. On some of the ballots, it is written yes against the name of the candidate and on some of the ballots it is written haan (in Punjabi Gurumukhi script, which also means yes when translated). On some of the ballot papers both yes and haan are mentioned besides yes and no against the candidates. In view of the rule, we have considered the ballot papers containing yes or haan against the name of the candidates as only valid votes. A copy of the original proceedings, Annexure R-2/1, which is in Punjabi Gurumukhi script, mentions that the Councillors were asked to write haan yas naah i.e. yes or no. In the written statement of respondent No. 2, he claims to have asked the Councillors to write yes or no. As such word yes either in English or its meaning in Punjabi as haan is accepted to be a valid exercise of voting. On this basis, the ballot papers in favour of Ashok Kumar, respondent No. 5 carry five ballots with yes written against his name and three ballot papers with haan written against his name which make in all eight valid votes in his favour. The rest of the votes are invalid because one vote carries a tick-mark and haan against his name, two votes carry both haan and yes and one vote carries both yes and no. 16. The other bunch of the ballots which are in the name of Sudesh Kumar Aggarwal-petitioner show that these contains word yes on eight ballots while word haan on one ballot which make it all nine valid votes in his favour. The rest of the ballots are invalid because one ballot carries only tick mark against his name, one vote contains haan and yes both and one votes contains haan and naah both. 17. The rest of the ballots are invalid because one ballot carries only tick mark against his name, one vote contains haan and yes both and one votes contains haan and naah both. 17. The petitioner-Sudesh Kumar Aggarwal thereby secured nine valid votes in his favour. The Returning Officer wrongly accepted the rest of the ballot papers in favour of both the petitioner and respondent No. 5 which do not contain single word yes or no according to rule and contain either yes and no or yes and haan and yes with tick mark which can identify the voter to the candidate at the time of counting which impliedly show that the Councillors who had written both yes and haan have done so in accordance with the prior indicated manner to make out their identity and remove doubt of their support. As such, these votes cannot be counted towards the valid votes. 18. After counting, all the envelopes have been sealed, put in the same parcel and sealed again with the seal of the Court. 19. The counting of votes, as above shows Sudesh Kumar Aggarwal-petitioner having secured nine valid votes whereas respondent No. 5 secured only eight valid votes. 20. This Court is not oblivious of the fact that to challenge the election, the remedy by way of election petition is available under Section 74 of the Punjab State Election Commission Act. Besides, objections have been taken by the respondents in their written statements that the petitioner has an alternative remedy of filing the election petition and as such this petition is not maintainable. 21. The election in question took place during the pendency of the writ petition filed earlier by the petitioner alongwith the other Municipal Councillors who supported him, seeking directions for holding of election meeting after it was postponed indefinitely by respondent No. 2 on 12.4.1998. Notice of motion was issued in that writ petition but in the meantime respondent No. 2 served the meeting notices on the Councillors for 10.6.1998. The petitioners in the earlier writ petition including the petitioner in the present petition again rushed to the Court and sought directions for peaceful holding of election and appointment of a senior officer of the District as an observer. The petitioners in the earlier writ petition including the petitioner in the present petition again rushed to the Court and sought directions for peaceful holding of election and appointment of a senior officer of the District as an observer. It is not disputed that this Court issued directions to the State Counsel who is stated to have informed immediately on the cellular phone the Deputy Commissioner of the District for the appointment of a senior officer as an observer in the election meeting. Admittedly, no such officer was deputed as an observer. Respondent No. 2, in his written statement, has categorically stated that he did not receive any written direction from this court or from the Deputy Commissioner. After the election, in the light of the allegations made by the petitioner, the present writ petition was filed but as stated earlier it was not entertained. But by order of the Supreme Court dated 5.11.1999, it has been restored. The order of the Supreme Court shows that respondent-State conceded that petitioner has no alternate remedy. The controversy between the parties pertained to the interpretation of Rule 4(4) of the 1994 Rules whether the rule could be complied only if the ballot is written with yes or no or if the same could also be complied if yes and no is written on the ballot papers. Even otherwise, the bar of jurisdiction under Section 74 of the Election Commission Act which provides that "no election shall be called in question except by an election petition" does not affect the extra-ordinary writ jurisdiction of this Court under Article 226 of the Constitution. 22. In S. Fakruddin and others etc. v. The Government of A.P. and others, AIR 1996 Andhra Pradesh 37 (FB) it has been held as under :- "Notwithstanding the bar as to jurisdiction of court in regard to Panchayat elections that the bar is to the ordinary jurisdiction of the Courts and not to the extraordinary jurisdiction under Article 226 of the Constitution and Article 136 thereof." 23. A Full bench of this Court in Lal Chand v. State of Haryana and others, 1998(2) Vol. CXIX. A Full bench of this Court in Lal Chand v. State of Haryana and others, 1998(2) Vol. CXIX. PLR 640, also considered the scope of Article 243-O Clause (b) and Article 243-ZG Clause (b) of the Constitution which oust the jurisdiction of the Courts in the matter relating to elections to any Municipality or Panchayat and held as under :- "No election to any Panchayat/Municipality shall be called in question except an election petition presented to such an authority and in such manner as is provided for by or in any law made by the legislature of a State, but this will not oust the jurisdiction of the High Court under Articles 226/227 of the Constitution." 23. It is clear that even the constitutional bar created under Articles 243- ZG does not oust the jurisdiction of the High Court in the mattes relating to the Municipal elections. No doubt, the exercise of jurisdiction under Article 226 of the Constitution has to be in appropriate cases. Even otherwise, a person who is elected on the basis of invalid votes cannot be allowed to continue in the elected office if the Court, on such a consideration that in his case it was not a fair election, entertains the writ petition. (See K. Venkatachalam v. A. Swamickan and another, AIR 1999 SC 1723). Admittedly, in such cases election petition is not an efficacious remedy. 24. Under the facts and the reasons given above, it is abundantly clear that respondent No. 5 was wrongly declared as having been elected by counting the invalid votes and the petitioner-Sudesh Kumar Aggarwal who obtained more valid votes were required to have been declared elected. 25. For the reasons given above, this petition is allowed. The election of respondent No. 5 is quashed and the petitioner-Sudesh Kumar Aggarwal is held to have been elected as President of Municipal Council, Kapurthala in the election held on 20.6.1998. Respondent No. 1 is hereby directed to notify the election of the petitioner-Sudesh Kumar Aggarwal as such within one month of the receipt of a certified copy of this order. Petition allowed.