Full Judgment Text
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PETITIONER:
GURDEEP SINGH & ORS.
Vs.
RESPONDENT:
STATE OF PUNJAB & ORS.
DATE OF JUDGMENT: 07/04/2000
BENCH:
S.R.Nabu, R.C.Lahoti
JUDGMENT:
R.C. Lahoti, J.
A meeting of the newly elected members of the
Municipal Council, Bareta for the purpose of electing
President and Vice- President of the Municipality, as
contemplated by Section 20 of the Punjab Municipal Act, 1911
(hereinafter the Act for short) read with Rule 3 of Punjab
Municipal (President & Vice-President) Election Rules, 1994
(hereinafter the Rules for short) was convened for 7th
April, 1998. There are 13 members of the Municipal Council.
The local member of the legislative assembly is an
ex-officio member of the Council, who was Shri Hardev Singh
Arshi at the relevant time. On 7.4.1998 only 5 out of 13
elected members were present which did not make the quorum
for the convened meeting. The convener of the meeting,
therefore, adjourned the meeting for want of quorum to
11.4.1998 at 11 a.m. to be held in the office of the
Municipal Council, Budhlada. On 11.4.1998, the thirteen
elected members and ex-officio member Shri Hardev Singh
Arshi, M.L.A. were all present at the appointed time and
place. The meeting commenced. It was presided over by Shri
Tej Kumar Goyal, P.C.S., General Assistant to the Deputy
Commissioner, Mansa, as convener. As contemplated by Rule
3, oath of allegiance was administered to all the elected
members. Proposals were then invited for the post of the
President. The names of Shri Lachman Dass and Shri Gurdeep
Singh were duly proposed and seconded. As there was a
contest, the convener proceeded to call for voting. Shri
Mohinder Singh, who had proposed the name of Shri Gurdeep
Singh demanded the election to be held through open ballot.
The convener declared that the Rules contemplated election
by secret ballot. However, Shri Gurdeep Singh, Shri
Mohinder Singh and their followers refused to abide by the
opinion of the Presiding Officer and insisted on open
voting. On the convener having refused to accede with their
demand, Shri Gurdeep Singh, Shri Mohinder singh and 6
others, i.e. in all 8 members, staged a walk out by leaving
the place of the meeting. Shri Hardev Singh Arshi, M.L.A.
and the remaining 5 members requested for Shri Lachman Singh
being declared elected as President. However, the convener
was of the opinion that before proceeding further he would
like to seek guidance from the higher officers and the
Government because of the legal point involved and he
adjourned the meeting for further orders and drew up the
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proceedings of the meeting recording the above said facts.
Shri Lachman Dass and a few other members preferred a writ
petition before the High Court seeking a mandamus to the
convener of the meeting for resuming the meeting from the
stage at which it was adjourned and concluding the election.
By order dated 12.2.1999, which is under appeal, the High
Court has allowed the writ petition couching its rule in
following words :- In these circumstances, we direct the
official respondents to continue the election from that
stage by instructing either the fourth respondent or any
other competent official to convene the meeting according to
law after giving proper notice only to such of those members
who remained present in the venue of the meeting after
respondents 6 to 14 had walked out, and permit them to vote
in the election for the office of the President. If any of
such members choose to be absent on the date fixed for
election to the office of the President in spite of the
notice to them then, those members who are present shall be
permitted to vote and elect the President. Whoever gets the
highest number of votes as between the petitioner and the
10th respondent should be declared as elected as President.
So far as the office of the Vice-President is
concerned, the election for the same shall be held
separately in accordance with law, in a separate ‘meeting.
This petition is ordered accordingly.
Feeling aggrieved, Shri Gurdeep Singh and 8 others
have filed the present appeal by special leave.
We have heard the learned counsel for the parties.
During the course of hearing it was submitted that Smt.
Bachan Kaur, a female member, was illiterate and the
petitioners were insisting on her ballot being cast with the
help of a co-member of the confidence of Smt. Bachan Kaur,
but that was not agreed to and this was the only
controversy. However, we will not enter into disputed
questions of fact and for the purpose of deciding this
appeal we would go by the record of proceedings, as prepared
by the convener of the meeting, who being a responsible
government officer, his record of proceedings can be taken
to be correct.
Rules 3 & 4 provide 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 newely
constituted Municipality, fix, by giving not less than
ninety hours notice to be served at the ordinary place of
residence of all the elected members, a date for 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.
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 the ballot by writing Yes
or No on the ballot paper. Special ballot-papers shall be
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used for such voting, each bearing an official mark to be
placed thereon by the Deputy Commissioner.
(2) If any member is illiterate or is otherwise
incapable of casting his vote by writing Yes or No on
the ballot paper, the person presiding over the meeting
shall record Yes or No, as the case may be, on the
ballot paper on behalf of such member, in accordance with
his wishes.
(3) The person presiding over the meeting covened
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.
The Rules are clear, unambiguous and do not leave any
room for doubt. In as much as there was a contest, the
convener ought to have proceeded for voting through ballot
papers observing utmost secrecy. There could not have been
an open voting which, though demanded, should have been
firmly ruled out. Sub rule (2) of Rule 4 reposes confidence
in the convener, i.e. the person presiding over the meeting
to assist any member who is illiterate or otherwise
incapable to cast his vote by writing Yes or No on the
ballot paper on behalf of such member. It is unfortunate
that the members wanted the voting to be conducted in a
manner inconsistent with the Rules. The convener should
have over-ruled any such demand and should have proceeded to
hold the election in the manner contemplated by the Rules.
The convener was also not justified in adjourning the
meeting on the ground of seeking guidance from the higher
officers and the Government. There was hardly any occasion
for such seeking of the guidance and adjourning the meeting.
The learned counsel for the respondents submitted that the
High Court was justified in directing the meeting to proceed
from the point wherefrom it was adjourned and directing the
8 members who had staged a walk over to be excluded from the
meeting as by their conduct they had shown that they were
not participating in the meeting. We do not agree. Shri
Gurdeep Singh had not withdrawn his candidature. The two
candidates were duly nominated candidates and the stage for
voting was set. Even if a few members including one of the
candidates had left the place of the meeting, nothing
prevented them from coming back and joining in the voting.
If only the convener had commenced the voting and the
members, who had earlier staged a walk-over, had returned
and expressed their desire to join in voting, they could not
have been prevented from doing so. The High Court was
justified in directing the meeting to be resumed from the
point at which it was adjourned but was not justified in
directing the members, who had walked out, from being
excluded from participation at such reconvened meeting. For
the foregoing reasons, the appeal is partly allowed. The
direction of the High Court for reconvening the meeting and
resuming the same from the stage at which it was adjourned
is sustained. So much part of the order as directs the
notice of the meeting to be given to only those members who
had remained present at the venue of the meeting and
excludes the members staging walk-over from participation in
the meeting and in the voting at the election for the office
of the President is set aside. Instead it is directed that
the notice of such reconvened meeting shall be given to all
the members constituting the Municipality and all such
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members, who choose to attend, shall be allowed to
participate in the voting. The meeting having already
adjourned once and the proceedings of the meeting having
already commenced, it shall not be liable to be adjourned
for want of quorum. S/Shri Gurdeep Singh and Lachman Dass
shall be treated as duly nominated candidates for the office
of President. The meeting shall be held and concluded in
accordance with law. In view of the time which has already
elapsed, it is directed that the official respondents shall
convene the meeting within a period of two months from the
date of communication of this order. No order as to the
costs.