Supreme Court of IndiaGurdeep Singh & Ors vs State Of Punjab & Ors on 7 April, 2000Equivalent citations: AIR 2000 SUPREME COURT 1560, 2000 (9) SCC 9, 2000 AIR SCW 1344, 2000 (2) UJ (SC) 1001, 2000 (3) SCALE 150, 2000 UJ(SC) 2 1001, (2000) 4 JT 318 (SC), 2000 (5) SRJ 121, (2000) 2 PUN LR 667, 2000 (125) PUN LR 667, (2000) 3 LANDLR 9, (2000) 3 SUPREME 170, (2000) 2 RECCIVR 715, (2000) 3 SCALE 150, (2000) WLC(SC)CVL 402, (2000) 2 CURLJ(CCR) 40Author:R.C.  LahotiBench:R.C.LahotiPETITIONER:
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 bySection 20of 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
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
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
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.