Skip to content


Sadashiv Vishnu Nagarkar and anr. Vs. Maruti Baloba Vyavahare and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 1914 and 1934 of 1968
Judge
Reported inAIR1970Bom93; (1969)71BOMLR519; ILR1971Bom140; 1969MhLJ740
ActsBombay Village Panchayats Election Rules, 1959 - Rules 7(1), 7(2), 7(3), 7(4), 8, 10, 11, 12(4), 13, 13(1) and 14(1); Code of Civil Procedure (CPC), 1908; Representation of People Act, 1950; Municipal Act; Zilla Parishad Act; Village Panchayat Act, 1958 - Sections 3(15), 11, 11(1), 11(2), 176 and 176(5)
AppellantSadashiv Vishnu Nagarkar and anr.
RespondentMaruti Baloba Vyavahare and ors.
Appellant AdvocateU.R. Lalit, Adv.
Respondent AdvocateP.S. Shah, Adv. and ;M.A. Rane, Asstt. Govt. Pleader
Excerpt:
bombay village panchayats election rules, 1959. rule 13 - validity of rule 13.;rule 13 of the bombay village panchayats election rules, 1959, is ambiguous, unworkable and difficult to enforce and is, therefore, invalid. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment..........application no. 1911 of 1968 the two petitioners and respondents nos. 1 and 2 and two others were candidates for the general constituency in ward no. 2 of the village karkamb in pandharpur taluka. the election programme published by the tahsildar was as follows:--1.the date of publication of voters' list...november 25, 1967.2.the date of filing of nominations...december 12, 1967.3.the date of scrutiny of nominations...december 13, 1967.4.the date of withdrawal of the same...december 21, 1967.5.the date of publishing the list of candidates...december 23, 1967.6.the date of recording of votes...december 29, 1967.7.the date of counting of votes and declaration of the results...december 30, 1967.on december 21, 1967, two of the candidates filed an application for withdrawal from the.....
Judgment:

Patel, J.

1. These two applications are directed against the orders of the Election Court setting aside the elections of the respective petitioners. In Special Civil Application No. 1911 of 1968 the two petitioners and respondents Nos. 1 and 2 and two others were candidates for the general constituency in Ward No. 2 of the village Karkamb in Pandharpur Taluka. The election programme published by the Tahsildar was as follows:--

1.The date of publication of voters' list...November 25, 1967.2.The date of filing of nominations...December 12, 1967.3.The date of scrutiny of nominations...December 13, 1967.4.The date of withdrawal of the same...December 21, 1967.5.The date of publishing the list of candidates...December 23, 1967.6.The date of recording of votes...December 29, 1967.7.The date of counting of votes and declaration of the results...December 30, 1967.

On December 21, 1967, two of the candidates filed an application for withdrawal from the election. The returning officer published on December 23, 1967, the list of candidates omitting the names of those who had withdrawn. Elections were held In accordance with the programme on December 29, 1967, and the results of the election were declared on the next day.

2. At the poll petitioner No. 1, Sada Shiv Nagarkar secured 366 votes, petitioner No, 2, Pandharinath Dudhane secured 345 votes, respondent No. 1 Maruti secured 325 votes and respondent No. 2 Vithal secured 324 votes. Respondents Nos. 3 and 4 contested for reserved seat. Respondent No. 5 is the returning Officer. Respondent No. 6 is the village Grampanchayat -- Respondent No. 7 is the Civil Judge, Senior Division, Pandharpur and respondent No. 8 is the Tahsildar of Pandharpur. Respondent No. 1 filed the application for setting aside the election of the petitioners on the ground that the withdrawal by the two candidates on December 21, 1967, of the date having been fixed by the Tahsildar for the same, was not in accordance with the terms of Rule 13 of the Village Panchayats Election Rules, 1959 (hereinafter referred to as the Rules of 1959) framed by the State Government under the Village Panchayat Act, 1958 (hereinafter referred to as the Act of 1958). The whole election, therefore, suffers from invalidity and it should be ordered afresh. It was contended before the learned Judge that the provisions of Rule 13 of the Rules 1959, are mandatory and that the withdrawal not being in accordance with the same, the candidates still continued to be candidates for the election, that their names should have been notified for the purpose and that the voters should have been entitled to vote for them. As Returning Officer did not do this, the elections ought to be declared as invalid. The contention appealed to the learned Judge and he accordingly set aside the election. The two petitioners contended that the learned Judge was not right in the view that he took.

3. Special Civil Application No. 1934 of 1968 relates to elections in the same village in Ward No. 5 and the contention in this case also is the same.

4. Mr. Lalit, for the petitioners, argued that Rule 13 of the Rules of 1959 is not a wholly understandable rule, it is not clear and definite and is not workable at all. Under the circumstances, if the officer fixed a date for withdrawal of candidature which did not in any manner affect the election programme and the relevant conditions, the election ought to be held to be good as it is not shown that the results of the election have suffered. Mr. Shah and Mr. Rane, for the respondents, have supported the judgment under review on the same grounds as in the court below.

Section 11(1) of the Act of 1958 requires the Election to be held by a panchayat on such date as may be appointed by the Collector in that behalf. Sub-section (2) provides that the election shall be conducted in the prescribed manner. The word 'prescribed' has been defined under S. 3(15) to mean prescribed by Rules. A duty is cast upon the Govt. to frame rules under S. 176 of the Act amongst other things for the purpose of S. 11 prescribing the manner in which the election of members shall be held. Under Sub-section (5) of S. 176, the rules are required to be laid before each House of Legislature.

5. Accordingly, the rules of 1959 have been framed. These are revised rules, the original rule has now been substituted by Rule 13 and it has created the difficulty of application, resulting both in waste of money and public time. For the present purposes, only a few rules need be referred to. Under Rule 7(1) the Mamlatdar is required to appoint the dates, the hours and place or places for the stages of an election, namely (i) the nomination of candidates, (ii) the scrutiny of nominations, (iii) the recording of votes and (iv) the counting of votes, the condition being that between the date fixed for the nomination of candidates and the date fixed for the poll there must be at least an interval of twentyfive days and that the date for the scrutiny of nominations should be the date immediately following the date fixed for the nomination of candidates. Sub-rule (2) is regarding the publication of all the necessary matters in a due and proper manner and need not detain us. Sub-rule (3) prohibits the change of venue appointed for various purposes under Sub-rule (1) without the sanction of the Collector subject to the proviso. Rule 8 relates to the manner in which the nomination of candidates has to be made. Rule 10 relates to the deposit to be made by a candidate who wants to be nominated as a candidate. Sub-rule (2) relates to the return of the deposit in the contingencies mentioned therein. Rule 11 relates to scrutiny of nominations. Under Sub-rule (2) the Returning Officer has to examine the papers and decide all objections which may be made before him to any nomination and after such inquiry as he considers necessary, reject a nomination paper on the grounds mentioned therein. But he is not entitled to reject any nomination paper on the ground of a defect which is not of a substantial character. Rule 12 relates to completion of scrutiny and appeal against rejection of nomination. Under Sub-rule (1) the Returning Officer is required to complete the scrutiny on the appointed day for the purpose. Under Sub-rule (2) he had to endorse on the same day on each nomination paper his decision accepting or rejecting the same and in case of rejection he is required to record in brief the statement of his reasons for such rejection. By Sub-rule (3) he is required to supply within twenty-four hours of the receipt of such application a copy of the decision along with his reasons for the same By Sub-rule (4) a candidate is permitted to present an appeal from the order of the Returning Officer rejecting his nomination paper to the Mamlatdar within two days of the date of the order of rejection and the Mamlatdar is required to decide the same within three days of the presentation of appeal and immediately communicate the decision to the Returning Officer. The order passed by the Mamlatdar is made final. Rule 13 relates to withdrawal of candidature. By Sub-rule (1) of Rule 14 the Returning Officer is required to prepare a list of candidates validly nominated and post it at the village Chavdi and the Village Panchayat Office at least ten days before the date appointed for the poll. By Sub-rule (2) he is required to give a notice by beat of drum in the village and invite the voters to remain present at the polling stations.

6. Rule 13 is the rule in question and it reads as follows (so far as relevant):--

'(1) Any candidate may withdraw his candidature by a notice in writing.....where no appeal is presented under Sub-rule (4) of Rule 12, on the day immediately after the expiry of the appeal period referred to in the said Sub-rule and where such appeal is presented under the Sub-rule, on the day immediately the following day on which the decision of the appeal is given ...... Any notice of withdrawal which is given after the expiry of the period prescribed in this rule shall not have any effect.'

Sub-rule (2) is not material for the present purpose. Sub-rule (3) reads as under:--

'The Returning Officer, on receiving notice of withdrawal under Sub-rule (1) shall, as soon as may be thereafter, cause a notice of withdrawal to be affixed at the village Chavdi and at the village Panchayat office.'

Mr. Lalit contends that the said Rule is very uncertain in its application and is purposeless in its present form. Where no appeal is presented under Sub-rule (4) of Rule 12 any candidate could withdraw only on the day immediately after the expiry of the period of appeal. On the other hand, where such an appeal is presented under that rule, then any candidate could withdraw on the day immediately the following day on which the decision of the Mamlatdar is given. It is argued that a candidate may not know whether or not some other candidate has filed an appeal, nor a candidate would know whether or not the Mamlatdar has made a decision. It is also difficult to understand the purpose why such two requirements are prescribed, the one for withdrawing on the fourth day and the second for withdrawing between the fourth and the seventh day. It is difficult to see what was intended to be achieved by making a provision of this nature. The result of such requirement would be that in respect of different Wards some withdrawals may be on the fourth day, some withdrawals may be on the fifth day, some on the sixth day and some may on the seventh day, if at all it is assumed that the decision of the appeal by the Mamlatdar is known to the candidates. Under Sub-rule (4) of Rule 12 the Mamlatdar is required to communicate his decision to the Returning Officer. Does the rule require that the candidates must go to the office of the Returning Officer every day to make inquiry as to whether the Mamlatdar has decided the appeal? Unless such an obligation is imposed it is possible that the candidates would not be in a position to know whether or not the Mamlatdar has made a decision in the appeal. It may also be that though the Mamlatdar is required to decide the appeal within three days of the presentation of the appeal, he may not be able to decide it and his decision may be delayed by a day. It is contended by M/s Shah and Rane that in such a case the decision may be without jurisdiction. That, however, is difficult to spell out from this portion of the rule. It may also, therefore, be assumed as a possible contingency that the decision may not be, in some case, rendered within three days as required by this Rule. Unless there is anything in the rule which can enable us to fix the date for withdrawal with certainty, the Rule must be held to be indefinite, vague, unworkable and therefore invalid.

7. In order to get over this difficulty it is argued by both M/s Shah and Rane that the later period in Rule 13 must be related only to a candidate who has filed an appeal. They want us to read the rule to mean that if a candidate has not filed an appeal, then he must give notice of withdrawal of his candidature on the fourth day and if he had filed an appeal, then he must give notice of his withdrawal on the seventh day or on the day next after the date on which the Mamlatdar decides his appeal. In the first place, if we attempt to read the Rule in the manner suggested, we will have to add words to the Rule, and in substance instead of interpreting the rule perform the duty of framing the rule which is not ours. Language is meant for exposing one's thoughts and not for concealing them. If the framers of the rule wanted that this rule should apply only to candidate who appeals or does not appeal, they could have said so by adding the words 'by him' after the words 'where no appeal is presented' and before the words 'under Sub-rule (4) of Rule 12' and again after the words 'where such appeal is presented' and before the words 'under that Sub-rule' in Sub-rule (1) of Rule 13. We do not think that we would be justified in reading the Rule in the manner suggested. The words 'any candidates' are wide enough to apply to each of the candidates who have sent their nomination papers and cannot be confined only to those who are concerned with the appeal and want to withdraw. It is settled that 'instruments and bylaws made under statutory powers enforceable by penalties are construed like other provisions encroaching on the ordinary rights of persons. They must on pain of invalidity, be clear and definite and free from ambiguity, and should not make unlawful things that are otherwise Innocent' (Vide Maxwell on Interpretation of Statutes, 11th edition, page 290). As in our view Rule 13 of the Rules 1959 is ambiguous and unworkable, it cannot be given effect in the same manner as where there is a clear rule which provides a particular terminal date for the withdrawal of a candidate from the election.

8. It was argued that in the present case, the provision being in a negative form, that is 'Any notice of withdrawal which is given after the expiry of the period prescribed in this rule shall not have any effect', we must hold that whatever may be the nature of the Rule, it must apply to a given case, and as the names of the candidates who had withdrawn on December 21, 1967 were not shown as candidates contesting the elections, the elections ought to be held invalid. Now it is true that the Rule which prescribes doing of certain things except in the manner provided must be held to be mandatory. But where, as in this case, it is difficult to enforce the Rule at all and is, therefore, invalid, it would not be right to say that the Returning Officer was not right in not showing them as candidates.

9. In the present, case, the Tahsildar had fixed December 21, 1967 as the date of withdrawal from elections by a candidate. In the old Rule a period of seven days was provided for such withdrawal from the date of scrutiny. Apparently, the Tahsildar has acted under that rule. Inasmuch as Rule 13, in our view, is indefinite and vague and could not possibly be observed by the candidates, the Tahsildar was right in fixing a specific date for withdrawal from the elections by a candidate. That being so, the Returning Officer was right in not showing those candidates who had withdrawn from the elections as candidates. Rule 14, which is a peremptory rule, requires at least ten days to elapse between the publication of the list of validly nominated candidates and the poll, and that rule has been observed inasmuch as sixteen days are allowed between the two dates.

10. Under these circumstances, the second question as to whether the results of the elections have suffered prejudicially against the respondents does not fall to be decided. In the first place, no evidence was led by any of the parties and there was not even an allegation in that respect.

11. We may observe that we have noticed that the election rules are being modified from tune to time which results in much litigation of this kind and which can very well be avoided if the Rules are specific, clear and are not changed or tinkered with so often. It would also appear that in order that elections should not be set aside on technical grounds because of errors of Returning Officers in conducting the elections to small bodies, it is desirable that a provision similar to the one in the Representation of the People Act, 1950 and in the Zilla Parishad Act which prevents election being set aside on such technical grounds should be added even to the Act of 1958 and the Municipal Act where it does not exist If such a provision is added, a great deal of waste of time of the Government, its officers, the public and also the Courts will be saved.

12. In the result, we make the rule absolute in both these applications and set aside the orders made by the learned Civil Judge, Junior Division, Fandharpur, and dismiss the applications of respondent No. 1 in each of these matters. Parties to bear their own costs.

13. Rule made absolute.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //