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Dattatraya Devidas Didolkar and ors. Vs. Vice Chancellor, Nagpur University, Nagpur and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1830 of 1976
Judge
Reported inAIR1976Bom276
ActsNagpur University Act, 1974 - Sections 21, 23, 33, 78 and 91; Constitution of India - Article 226
AppellantDattatraya Devidas Didolkar and ors.
RespondentVice Chancellor, Nagpur University, Nagpur and ors.
Appellant AdvocateB.A. Udhoji, Adv.
Respondent AdvocateS.K. Sanyal, Adv.
Excerpt:
.....act - the court upheld the contention and ruled that the reference to old statutes in agenda for meeting of senate was illegal - it was further held that the statutes 26 and 27 under the repealed act were superseded in this context ;d) the case examined wrong reference under which action was taken in the exercise of power by a statutory body - in the meeting of the senate, procedure under statute 33 of the new nagpur university act, 1974 was followed - however, reference was made to statutes 26 and 27 under the repealed act - the court held that such a reference did not invalidate the meeting of the senate - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating.....dharmadhikari, j.1. the petitioner in this case are members of the nagpur university senate as constituted under section 20 of the nagpur university act, 1974, referred to hereinafter as the act.. the petitioner at present are detained under section 3 of the maintenance of internal security act in central jail, nagpur. 2. it appears from the record that the register of the nagpur university under the directions of the chancellor has convened annual meeting of the university senate on saturday the 21st february 1976, at 11.00 a.m. under section 21 (1) of the act. the relevant items which are germane to the controversy involved in this petition are items nos. 2 and 3 of the agenda, which read as under:--'item 2, to elect members to the executive council as under from amongst members of the.....
Judgment:

Dharmadhikari, J.

1. The petitioner in this case are members of the Nagpur University Senate as constituted under Section 20 of the Nagpur University Act, 1974, referred to hereinafter as the Act.. The petitioner at present are detained under Section 3 of the Maintenance of Internal Security Act in Central Jail, Nagpur.

2. It appears from the record that the Register of the Nagpur University under the directions of the Chancellor has convened annual meeting of the University Senate on Saturday the 21st February 1976, at 11.00 a.m. under Section 21 (1) of the Act. The relevant items which are germane to the controversy involved in this petition are items Nos. 2 and 3 of the agenda, which read as under:--

'Item 2, To elect members to the Executive Council as under from amongst members of the Senate:--

(a) Two principals, under Section 23 (1) (vii) of the Act.

(b) Two teachers, under Section 23 (1) (vii) of the Act, other than Principal and Heads of University Departments.

(c) Seven persons, under Section 23(1) (ix) of the Act, other than Principals, teachers and Student Members.

Item 3. To elect three members, under Section 33 (1) (iv) of the Act, the Board of Extra Mural Studies from amongst Members of the Senate.'

It is obvious from bare reading of these items on the agenda that they relate to the election of members to certain authorities of the University, including the Executive Council. Note 3 attached to the said items lays down the procedure for filing of nomination papers etc. which is as under :--

'3. For election under Items 2 and 3, the dates for submission of nomination papers, their security and withdrawal of candidatures shall be as under as per Statute 27 (Old) :--

(i) Last date for receipt of nomination papers. ----------- 15th February 1976.

(ii) Scrutiny of nomination papers ----------------------------------- 16th February 1976.

(iii) Last date for withdrawal of candidature ----------- 18th February 1976. As the petitioners were detained in Jail, they filed an application addressed to the Vice Chancellor, Nagpur University dated 5-2-1976 requesting him to make arrangements to send the ballot papers on their jail address in due time, because, according to them , they were entitled to exercise there right of vote under Statute 36, by post. The said request was negative by the University and the Registrar by his reply dated 10th February 1976 informed the petitioners that Statute 36 has no application to the elections in question. He further stated that in the instant case the election will be held at a meeting of the Senate in accordance with the provisions of old Statute 26, which s still on the Statute Book, and therefore, the members attending and participating in the meeting of the Senate alone are entitled to cast their votes at the meeting itself. It is this action of the Nagpur University, which is challenged by the petitioners in this writ petition.

3. Shri Udhoji, the learned counsel for the petitioners, contended before us that the interpretation put forward by the University authorities upon the provisions of Statute 36 is not in accordance with the well established principles of interpretation of Statutes. He further contended that after framing of the new Statute under the new Act, the Statute framed under the old Act ceased to be in force, and therefore, the procedure followed by the University authorities in holding the elections as per old Statute 26 is illegal. He further contended that under the new Act specific Statutes have been framed for the purposes of holding elections. including Statute 36. According to the learned counsel, Statutes 33,34,35,36,37,38,39 and 40 deal with the procedure of elections to the various authorities in holding elections to the various authorities of the University. Statutes 33,34,35 and 36 apply to all the elections held under the Act. Items Nos. 2 and 3 on the agenda of the meeting deal with the election to be held under the provisions of the act. Therefore, according to the learned counsel, Statutes 36 will also apply to the said elections. He further contended that under statute 36 the petitioners, being the persons detained under the preventive detention law, are entitled to cast there votes by postal ballots, and therefore, the action of the University in refusing to issue the postal ballots to them is illegal and is contrary to Statute 36 of the Statutes framed under the Act.

4. On the other hand in the return filed on behalf of the University t is contended that the old Statutes, including Statute 26 , are still in force in vu of the provisions of secant 91 of the act and therefore reference made by the University authorities in the notes attached to agenda or in the letter issued by the registrar to old Statutes 26 and 27 is perfectly legal. The University in its return has further stated that the election referred to in the agenda of the meeting are scheduled to be held n the meeting of the Senate itself. The rules of procedure at the meeting of the University Senate are provided for by Statute 45, and therefore, the provisions of Statutes 36 are not applicable to the present elections. t is further contended on behalf of the University that status 36 apples only to the election to the Senate to other authorities of the university .

5. For properly appreciating the controversy involved n this petition it will be useful to make a reference to the relevant provisions of Section 91 of the Act.

'91 (xiii) all Statutes, Ordinances, Regulations and Rules, all notices and orders made or issued under the said Act, shall, n so far as such Statutes, Ordinances, Regulations and Rules are not contend with the provisions of this Act continue in force and de deemed to have been made or issued under this Act, until they are superseded or modified by the Statutes, Ordinances, Regulations, rules, notices and orders made or issued by or under this Act;

Provided that, no Statute, Ordinance, Regulation, Rule, notice or order made or issued under the said Act, and n force immediately before the commencement of this Act, shall be deemed to be constant with the provisions of this Act by reason only that the power to make or issue such Statute, Ordinance, Regulation, Rule, notice or order under this Act vests in a different authority or body or officer, or that the subject-matter thereof is permissible only under a different form of subordinate legislation or instrument to be made under this Act.'

From the bare reading of this provision it is obvious that the Statutes framed under the repealed Act n so far as they are not inconsistent with the provisions of the new Act were continued to be in force and are deemed to have been made or issued under the new Act until they are superseded or modified by the Statutes made under the new Act. Till the new Statues were framed under the new Act, by virtue of a fiction created by Section 91 of the Act, the old Statutes continued and were deemed to have been framed under the new Act. If this s so, once the Statutes on the relevant subject are framed under the new Act, obviously the Statutes framed under the repealed Act shall stand superseded. Therefore, in our opinion, once the new Statutes are framed under 1974 Act superseding the earlier Statutes, then the old Statutes cannot continue to be in force and it is not possible to hold that simultaneously two sets of Statutes will continue to be n force on the same subject. In our opinion, the petitioners are right in contending that the old Statutes 26 and 27 are no more in force once the new Statutes are framed by the competent authorities under the new Act. This result must follow by necessary implication. Obviously therefore, a reference made to the old Statute 26 and 27 by the University authorities either in the notes attached to agenda or in the letter written by the Registrar, as per the direction of the vice-chancellor, is obviously illegal. In this view of the matter, in our opinion, the elections scheduled to be held in the meeting of the Senate on 21-2-1976 will have to be held in accordance with the new Statutes framed under the 1974 Act.

6. In the case before us we are concerned with the elections contemplated by Section 23 (1) (vii), (viii) and (ix) of the Act which reads as under:

'23 (1) The Executive Council shall be the principal executive authority of the University, and shall consist of the following members, namely:

X X X X X X X

(vi) Two Principals elected by the Senate from amongst its members;

(viii) two, Teachers, other than Principals and Heads of University Departments, elected by the Senate from amongst its members;

(ix) seven persons, other than Principals, Teachers and student members, elected by the Senate, from amongst its members'

The election contemplated by item No. 3 of the agenda relates to election of 3 members to the Board of Extra Mural Studies from amongst Members of the Senate under Section 33 (1) (iv) of the Act. The procedure as to how the elections to the Senate, the Executive Council or any other authority or Body of the University are to be held is provided for by Section 78 of the Act, which reads as under:

'78. Every election to the Senate, the Executive and Academic Councils or any other authority or Body of the University shall be held by ballot according to the system of proportional representation by means of the single transferable vote, and as prescribed by the Statutes.'

Therefore, the elections to these Bodies will have to be held by proportional representation. For carrying out the purposes of the Act in this behalf certain Statutes have been framed. Statute 33 deals with nomination. Clause I of the said Statute provides that the provisions of Statute 34 deals with administrative machinery for the conduct of election. Statute 35 then deals with the right and manner of voting. Sub-clause (2) of Statute 35 lays down that at every election where a poll is taken, vote shall be cast by ballot in such manner as may be prescribed. Then clause 3 lays down that each elector shall have one vote only. It also provides for the mode of voting. Sub-clause (4) then lays down that no vote shall be cast by proxy. Then comes Statute 36 which deals with voting by post. The relevant provisions of this Statute on which reliance is placed by the learned counsel for the petitioner read as under:

'1. Without prejudice to the generality of the provisions contained in Statute 34 the following persons shall cast their votes by postal ballot unless otherwise permitted, viz. ----

(a) when he is a member of the Armed Forces;

(b) when he is under preventive detention;

(c) when he s not ordinarily residing within the University area;

(d) when he ordinarily resides outside the area of any Polling Centre:

Provided that a person who s ordinarily residing within the area of a polling centre but will be absent from that area and will not be present at any other area which is a polling centre may be allowed to cast his vote by postal ballot on a specific request made in writing to the Returning Officer.

Provided secondly, that a person who s on duty either on the N. C. C. or T. A or Home Guards or N. S. S. or University elections and s not n a position to cast his vote at a polling centre may be permitted to cast his vote by postal ballot on a request made in writing to the Returning Officer.'

Then Statute 37 deals with the conduct of elections at polling Stations. Statute 3, which is framed under Section 78 of the Act, provides for the procedure for elections to be held by ballot according to the system of proportional representation by means of the single transferable vote. Statute 40 deals with election of one Head of University Department on the Executive Council and Statute 41 deals with the election of three persons to be elected on the Executive Council by the Academic Council from amongst its members. Then comes Statute 45 which prescribes rules of procedure at the meeting of the University Senate. Clause 3 (a) of the said Statute lays down the items of business to be entertained in the first annual meeting of the Senate. One of the items, namely item No. iii, of clause 3 (a) of Statute 45 reads as under:

'3 (a) At every meeting, if it is a part of the business to be entertained, it shall be taken n the following order, unless the meeting, by a special vote, otherwise determines----

X X X X X X

(iii) The election of any member or any authority or body or of any official of the University, if it is a part of the business to be entertained at the meeting;'

Clause 5 of the Statute lays down a quorum for the meeting. Other clauses of the Statute deal with the procedure to be followed for conducting the meeting. Therefore, from the bare reading of these Statutes it is obvious that these Statutes lay down the procedure to be followed for holding election to the various Bodies or authorities of the University

7. In the present case we are concerned with the elections by the Senate on the Executive Council of the University and to Board of Extra Mural Studies from amongst the members of the Senate. The Senate is one of the authorities of the University referred to in Section 19 of the Act. How the Senate is to function is provided by Section 21 of the Act. The Body like the Senate is different from the persons of which it is composed. Section 21 contemplates that the Body will carry out its functions in a meeting. The word 'meeting' prima facie connotes coming together of persons for certain purposes. n substance, it is a gathering of persons with a specific object in view. To hold elections is an important function of the annual meeting of the Senate. Voting is one of the well known legal methods to ascertain the will of the members present at the meeting. If this is so, by necessary implication it will have to be held that he persons present at the meeting alone will have a right of voting unless voting by proxy is specifically provided. As already observed, the voting by proxy is prohibited. In this view of the matter, in our opinion, if a person is not present in a meeting, he cannot take part in the deliberations of the meeting and consequently in the voting.

8. After a declaration is made by the vice-chancellor that the Senate is duly constituted, the meeting of the Senate is being held for the first time under the new Act. It is pertinent to note that section 23 (1) (vii), (viii) and (ix) clearly lays down that the elections are contemplated by the Senate from amongst its members. The elections are not contemplated by the members of the Senate individually. t s quite clear from the bare reading of Section 23 that the legislative intent that elections to the Executive Council or to the Board of Extra Mural Studies should be 'by the Senate' though from amongst its members. Therefore, in our opinion, the provisions of the various Statutes will have to be interpreted and understood in the context of these substantive provisions of the Act itself. So far as Statute 33 is concerned, it makes clear that the provisions of the said Statute shall apply to all elections held under the Act. In the instant case vied items Nos. 2 and 3 on the agenda, the elections are being held under the Act itself, therefore, obviously the provisions of Statute 33 will apply. There is no dispute between the parties that the provisions of the said Statute are followed by the University, though a wrong mention has been made to old Statute 27 in the Notice of the meeting. It is well settled that merely a wrong reference to the power under which certain actions are taken by the authority would not per se vitiate the action done, if they can be justified by some other power under which the said authority could have lawfully taken the said action. Statute 33 practically provides for the same procedure which was earlier provided by the old Statute 26 or Statute 27. No prejudice has been shown or even alleged. Therefore, though a wrong reference is made to old Statute 27 in the notice, the provisions of old Statute 27 in the notice, the provisions of old Statute 27 and the new Statute 33 being substantially identical, the proceedings of the meeting cannot be held to be invalid on that count. In this view of the matter, in our opinion, it cannot be held that the procedure so far followed by the Nagpur University is in any way illegal.

9. So far as the other Statutes are concerned, including Statutes 34, 35 and 36, it has not been laid down n any of these Statutes that the provisions of the said Statutes shall also apply to all the elections held under the Act of 1974. In Statute 36 a reference is made to Statute 34. It is not disputed before us that Statute 34 will have no application to the present elections. The present elections are being held in the meeting of the Senate. Therefore, the question of fixing of the places ect. of the elections will not arise. Statute 35, as already stated, deals with right and manner of voting and Statute 36 provides for voting by post. While construing the provisions of an Act and the Statutes, it is well settled that no undue importance can be attached to the stray words used here and there, but the Statute should be construed and read as a whole. If Statute 36 is read as a whole, it provides internal guidelines for its construction. Clause 1 of the said Statute provides for voting by postal ballot when a person is a member of the Armed Forces, or he is under preventive detention, or he is not ordinarily residing within the University area or when he ordinarily resides outside the area of any posing centre. From the bare reading of this Statute as a whole, it is obvious that this Statute will have no application to the elections which are being held in a meeting, because in that case a question of polling centre etc. cannot arise. Further, apart from the provisions of Statute 36, it is obvious from the substantive provisions of the Act that the Legislature intended that the various elections to the Executive Council or to the Board of Extra Mural Studies should be by the Senate, though from amongst its members. The provisions of the Act contemplate volition of the Senate as a whole and not of its individual members; though voting is one of the well known legal methods of expressing opinion or indicating choice. Election by ballot is one of such recognised modes of choosing persons by ascertaining the will of the members present at the meeting. The Senate is constituted under Section 20 of the Act and includes ex officio members, elected members and other members. Then Section 21 deals with the meeting of the Senate. Section 21 lays down that the Senate has to meet twice a year on the dates to be fixed by the Chancellor and one of the two meetings shall be an annual meeting of the Senate. The meeting scheduled to be held on 21st February 1976 is an annual meeting of the Nagpur University Senate. Therefore, t is puttee clear from the bare reading of these various provisions that the elections to the Executive Council or to the Board of Extra Mural Studies by the Senate should be held in the meeting of the Senate itself. Once it is held that these elections are required to be held in the meeting of the Senate, then it is obvious that the provisions of Statute 36 will have no application to these elections. As to what procedure should be followed in conducting the business of the meeting is provided by Statute 45. Though the elections are governed by Section 78 of the Act, it is obvious that the lecterns contemn plated to be held being in the meeting, the persons present in the meeting alone can exercise their right of vote. Apart from the general provisions of law, statute 35 clearly lays down that no vote shall be cast by proxy. Voting by post is unknown when the election is to be held in the meeting itself.

10. Therefore, in our opinion, f all the provisions of the Act and the Statutes are read harmoniously in the context of the specific phraseology used in Sections 23 and 33 of the Act, then it is not possible to hold that Statute 36 can apply to the elections by the Senate', which are required to be held in the meeting of the Senate. Therefore, the persons who are not in a position to attend the meeting for reason whatsoever, including the reason beyond their control, cannot get a right of voting by following the procedure prescribed by Statute 36.

11. In this view of the matter, it is not possible for us to accept the contentions of Shirr Shoji that Statute 36 will apply to the election scheduled to be held in the meeting of the Senate dated 21-2-1976.

12. In this view of the matter, there is no substance in this petition, and therefore, it fails and is dismissed. However. in the circumstances of the case, there will be no order as to costs.

13. Petition dismissed.


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