1. These two petitions raise an interesting point with regard to the refection by the Returning Officer to open as many as 56 ballot papers in Writ Petition No. 2797 of 1979 and 240 ballot papers in Writ Petition No. 2819 of 1979. The Returning Officer was concerned with the holding of elections to the Specified Society, being the Maharashtra State Co-operative Bank Ltd., to elect its committee. An election to elect its committee is to be conducted by the Collector, as is provided by Section 73-G of the Maharashtra State Cooperative Societies Act. 1960. The First Petition i. e. Writ Petition No. 2797 of 1979, concerns with the election with regard to the Urban Bank Constituency which was required to elect four members from four divisions, while the other petition is concerned with the individual member from the Constituency which returns one member on the committee.
2. The Collector of Bombay, who is the Collector to hold the elections under Section 73-G of the Maharashtra State Co-operative Societies Act, 1960 programmed the election and fixed the date of poll as November 10. 1978 in which the ballot papers were received by post. It is common ground that 56 ballot papers in costal packets in the Urban Bank Constituency and 240 ballot papers in similar manner from individual members of the constituency were received by the Returning Officer, but he did not open the packets, nor did he examine the ballot papers but treated all those ballot papers as rejected on the ground that the attestation on the outer envelopes was not made either by the Stipendiary Magistrate or by a Gazetted Officer of the District, as is provided for by the Election Rules for the purpose of electing a member to the House of the People or to the Legislative Assembly of the State. The reason that prevailed, as appears from the record, with the Returning Officer was that the Special Executive Magistrates were neither the Stipendiary Magistrates nor the Gazetted Officers of the Districts. In this manner, keeping away the 56 ballot papers in Writ Petition No. 2797 of 1979 and 240 ballot papers in another Writ Petition, he proceeded to declare the results.
3. It is not necessary to refer to that declaration in detail. Suffice it to say that the petitioner in each of these cases, being aggrieved, preferred to file an Election Petition before the Commissioner of Bombay Division, Bombay, the authority under the Rules who determines the election disputes. The Election Petition lies under Section 144-T of the Maharashtra State Co-operative Societies Act, 1960 on the grounds as are provided for in Rule 81 of the Rules called the Maharashtra Specified Co-operative Societies Election to Committees Rules 1971. On the pleadings of the parties in both these petitions, several issues were raised, one of the issues being with regard to the non-scrutiny of the postal ballot papers on the ground that the attestation was by the Special Executive Magistrate. The Election Commissioner eventually has dismissed the election petitions. That dismissal of the election petitions by the impugned orders is the subject-matter of challenge in these two Writ Petitions.
4. In support of the petitioners in both these cases, Mr. Paranjape wanted to urge all the original grounds which were the basis for challenging the election. However, we did not permit Mr. Paranjape to raise all the grounds excepting the ground with regard to the rejection of the postal ballot papers by the Returning Officer. It may be stated that the other grounds raised in the Election Petitions are the grounds with regard to certain facts and have been decided one way or the other because of the facts available in the petitions and hardly we can interfere in exercise of our Writ Jurisdiction.
5. Before we turn to the contest as to the validity of the action of the Returning Officer and the view expressed by the Election Commissioner in that regard, we may note that in Writ Petition No. 2797 of 1979, Dr. Naik raised a point that there is no specific pleading within the meaning of Rule 81 (d) (iii) of the Rules inasmuch as the grounds do not assert that the election of the returned candidate has been materially affected by the improper reception, refusal or rejection of the votes. Similarly he tried to contend that the Co-operative Societies, which had sent in the nominees for the purposes of the election, were necessary parties to the Election Petition itself and non-joinder thereof is a fatal defect and the Election Petition itself was liable to be dismissed.
6. Both these submissions of the learned Counsel are without any merits. The pleadings in such matters have to be appreciated on the basis as to how the controversy was understood by the parties. Furthermore, we have gone through the pleadings ourselves and it does specifically raise the grounds with regard to the wrongful rejection of votes and it further asserts that the elected candidate has been wrongly elected and in fact the petitioner would have been elected but for these defects. There are sufficient pleadings raised in the grounds and they were so understood, as is reflected by the issues framed by the Election Commissioner. It is too late for Dr. Naik to argue the defect of pleadings or a defect of non-joinder of any party. For all intent and purposes, the nominees of the Co-operative Bank were before the Election Commissioner. Not only that, but they also participated as such. There was thus sufficient identity of the parties, for they were representing their own Cooperative societies. It may further be mentioned that the impugned judgment does not show that before the Election Commissioner the defect of non-joinder was seriously pressed.
7. Now, turning to the exclusion of these votes, it is necessary to indicate the provisions of the law and the Rules and the order made by the Collector, The Rules of 1971 provide for the procedure of poll and by Rule 31 of the said Rules the manner of voting at election is indicated, the manner being to cast the ballot paper at the booth as is provided for by Rules 32 to 43. It is not necessary to refer to these Rules in detail. Suffice it to observe that this is the method which enables a voter to go to the Polling Station and, upon satisfaction of the Officer to receive the ballot paper and by making the mark on the ballot paper as is prescribe, to vote at the election by inserting the marked ballot paper in the prescribed manner into the ballot box. Thus, the normal rule is of the process of direct voting. However, Rule 93 permits and makes a provision by postal ballot. That Rule provides, inter alia to the effect that where any constituency extends over more than one District, the Collector may by an order published in the Official Gazette, make provision for enabling all or any persons or class of persons ordinarily residing or having registered office outside his District to give their vote by postal ballot, and not in any other manner. It further provides that where the Collector has published an order providing for giving vote by postal ballot, the Returning Officer is bound to supply the ballot paper to every voter entitled to exercise his right of voting in that manner.
8. A plain reading of this rule shows that before voting by postal ballot can be permitted, the provision with regard to that has to be made by the Collector by making an order duly published in the Official Gazette. Otherwise, the process of ballot has to be by the direct poll as mentioned in earlier rules. In other words subject to the order of the Collector under Rule 93 the ordinary method of direct voting is the only permitted method. That method can be changed provided there is a specific order in that regard.
9. As far as the present specified society is concerned, the Collector of Bombay is the concerned Collector and he has made an order under Rule 93 which was published in the Official Gazette of October 12, 1978. That order stated that the Collector purported to make the provision for enabling all or any persons or class of persons ordinarily residing outside the District of Greater Bombay to give their vote by postal ballot and not in any other manner at the election including the election for this specified society. In the order the present specified society was mentioned as the one at Serial No. 2. We are not concerned with the other societies which are at Serial Nos. 1, 3 and 4. Having indicated in terms of Rule 93 the provision for exercise of right of voter by postal ballot, the order did not indicate nor did it specify nor did it make any provision as to how that right was to be exercised.
10. It is common ground, and it is not in dispute, that this order did not provide for the procedure or the manner in which the postal ballot had to be effectively exercised. Even there is no reference in this order to the Election Rules which are usually followed for the purpose of electing Members to the House of the People or to the Legislative Assembly of the State. In other words, on the question of the mode and manner of exercise of vote by postal ballot, no order has been made by publishing the same in the Official Gazette by the Collector. The language of the Rule is clear. It enjoins upon the Collector to make an order by publishing it in the Official Gazette with regard to the provisions for enabling particular class of persons to give their votes by postal ballot. The phrase making 'provision for it' is clear enough and does not admit any doubt. While making provisions for such type of voting by the postal ballot the Collector is bound to indicate the procedure therefor. Unless the procedure is so provided and made the part of the order, it is obvious that the terms of Rule 93 are not satisfied. When such type of power is conferred to provide for a different method of voting, it is implicit that the authority concerned possesses the power to lay down the procedure for exercise of that method. This should be so when the rule requires of making an order to be published in the Official Gazette. Such an order must be clear enough both in the matter of the other method and manner of its exercise. It should be impermissible to import the procedure which is not made by or under the order. When statute lays down mode and manner of making an order by the public authorities, those who are under the mandate of such statute can only act in accordance with such mandate or not at all.
11. What has the Collector done in the present case? He has no doubt passed an order and gazetted it too as required by Rule 93. By that he has permitted the other mode and manner of casting the ballot, being the one commonly known as postal ballot. However, he has not, as is clear from the order, laid down any mode and manner of exercise of such postal ballot. It is indeed too frail a submission that by the words 'postal ballot,' the procedure laid down under the Representation of the People Act and Rules is impliedly made the part of the order. In fact, when the Rule requires such orders to be gazetted, it is implicit that unless, the mode and manner for the exercise of such ballot is also gazetted, it is not the binding rule as far as such mode and manner is concerned. The implication of Rule 93 is clear. It requires the gazette publication so that everyone intending to exercise right of vote as per the Rule is aware not only of the method of voting but also the manner thereof. Admittedly, there being no procedural order made by the Collector, the matter remained at large. On the basis of the order of the Collector, every vote sent by post, keeping the secrecy thereof, would be a valid exercise unless there are any inhibitions properly made by competent authority. It cannot but be emphasised that the matter arises under the delegation of the Rules. Normally, such matters, being of prime importance, should be dealt with by the Rules themselves, but the scheme of the Rules indicates that having laid down the general mode and manner for the exercise of vote in the elections of the specified society, the matter was left to the statutory delegate like the Collector to depart from that mode by making a general or specific order. The Collector, therefore, could not but act with regard to the whole subject of Rule 93 except by making an order indicating the different mode of voting as well as the manner and method thereof.
12. What appears to have happened is that for the present election the Collector purported to issue a circular letter to the Returning Officer on or about September 20, 1978. a copy of which was produced at the time of hearing, indicating the guidelines with regard to tha procedure to be followed by the Returning Officer. That circular stated generally:
'It would be advisable for the Returning Officer to adopt the procedure followed in the General Elections to the State Assembly or Lok Sabha where there are no clear cut guidelines or directions in the provisions of Specified Co-operative Societies Elections Rules 1971'.
Relying on these guidelines, it appears, the Returning Officer proceeded and in fact issued the postal ballot in the same form which is used for the purpose of election to the House of the people or to the Legislative Assembly of the State as is provided by the Representation of the People Act and the Rules made thereunder. It is common ground that the forms were got printed and were supplied to the voters along with the similar directions in the matter of exercise of vote by the postal ballot as are available in those rules and particularly in Rule 23 framed under the provisions of that Act. Form 13-D, which was printed verbatim with the necessary change of election of the Co-operative Societies Ltd. constituency from the rules governing the elections, appears to have been supplied to the voters and that contained instructions for the guidance of the electors. These instructions are in two parts, one called Part I, dealing with the 'Directions to Electors' and Part II under the heading 'Instructions for Electors'. Direction No. 3 stated that if the elector were to vote for more than one candidate, his ballot paper would be rejected. Similarly, direction No. 5 with regard to the marks stated that if the mark was so placed as to make it doubtful to which candidate the elector has voted, that vote would be invalid. Direction No. 6 stated that an elector shall obtain the attestation of his signature on the declaration in Form 13-A by a stipendiary Magistrate or by a Gazetted Officer of the District in which the voter is to vote. Instruction (b) stated that the elector has. then to sign the declaration on Form 13-A in the presence of a stipendiary Magistrate or any other Officer competent to attest the signature of the elector. Instruction (f) indicated that if the voter failed to get his declaration attested or certified in the manner indicated above, the ballot paper will be rejected.
13. It appears that acting upon these instructions as many as 56 electors in one petition and 240 electors in another, exercised their right of voting by postal ballot by getting their signatures attested by the Special Executive Magistrates in the concerned Districts. It is not in dispute that as far as the Special Executive Magistrates are concerned, they are appointed by the State under Section 21 of the Code of Criminal Procedure and further that all their appointments are gazetted appointments. It is also not in dispute that they are competent to attest the signatures of the persons concerned.
14. What prevailed with the Returning Officer as well as the Election Commissioner, is as stated above and as is being contended for the respondents, that the attestation is invalid not being by either the Stipendiary Magistrate or by a Gazetted Officer of the District. In one of the petitions, Dr. Naik relied on the decision of the Mysore High Court in R. Subbanna v. S. R. Guru., for pointing out that the connotation of the word 'Gazetted Officer' is that not only his appointment must be gazetted, but he must be the member of the service of the State or of the Central Government, It is common contention of the learned Counsel for the respondents that these being the election matters and not the matters governed by the common law rights, this Court should not interfere by putting the interpretation which can at the most be said to be a possible interpretation. It is contended that the instructions issued on the authority of the Collector should be treated to have been properly made under Rule 93 and as such binding on the voter and failure of the elector to follow the same must necessarily result in rejection of the ballot paper. At least that had been the view of the Returning Officer and the Election Commissioner having jurisdiction to decide these matters and, therefore, it will not be appropriate exercise of our extraordinary power to interfere with their conclusion.
15. We have given our anxious considerations to all these submissions. It is undoubtedly true and needs no emphasis that the matters of election are matters of statute. They do not pertain to the domain of common law. From this, it does not follow that the matters which are not within the statute should also prevail when the statute itself does not make the provision therefor.
16. As indicated above, the Collector has not made any provision with regard to the manner of exercise of votes by postal ballot. What he did was to issue a circular to the Returning Officer directing him to follow, as far as possible, the procedure that is being followed for the purpose of electing Members to the House of the People or to the Legislative Assembly of the State under the provisions of the Representation of the People Act. Such a circular cannot be equated with the making of the provisions for enabling the persons to give their votes in a particular manner by postal ballot. If such provisions were to be made, the Rule required that it had to be by an order to be published in the Official Gazette. Neither of these requirements are satisfied. There is neither the order nor any gazette publication. The law of the present kind, permitting the authority to make provisions with regard to the specified subject. has to be followed by the mandate indicated by the provisions of the law itself. The circular issued to the Returning Officer is hardly a substitute for an order required to be gazetted under Rule 93. It is obvious, therefore, that the Collector had not prescribed any procedure, much less the procedure by reference to the Rules framed under the provisions of the Representation of the People Act. No doubt, he had issued a circular, but that circular was issued to the Returning Officer with regard to the procedure to be followed by him wherever the Rules were silent. Possibly, that cannot be treated to be a further delegation of making a provision as contemplated by Rule 93 itself. Such a delegation on the face of it would not be within the limits of Rule 93. It required the Collector to make a provision for enabling the persons to give their votes by postal ballot. The Collector having failed to make the provision in that regard, including providing for the procedure in the matter and manner of attestation, the Returning Officer could not treat the ballot papers received by post as invalid merely on the ground of the instructions which do not partake in the character of an order made by the Collector.
17. Even turning to these instructions which have no final efficacy of law as indicated above, we find it difficult to uphold the rejection of such a large number of ballots. Elections are conceptually the measures of ascertaining the will of majority. Its procedure ordinarily is laid down by the law governing the process by which such will of the majority is ascertained. Technical approach and approaches based on assumptions are likely to frustrate the very object of the elective modality. In a democratic set up subjected to the rule of law and activised by the processes of law, it should behave on all authorities to keep in mind that before the will of large number of electors is kept out of the ken of consideration in the process of ascertaining majority, there must be clear ground sanctioning such an action, the normal democratic rule being acceptance of the vote and ascertaining the will of the elector. From the premise that not being a common law right, it does not follow that assumed technicalities which are not the part of the law should be allowed to prevail so as to frustrate the very exercise of legal right of exercising the vote. If the vote in fact is exercised and the identity is not in doubt of the elector and the same is exercised in the manner laid down by competent rule of law, then the Returning Officer cannot, on the ground of his instructions not being followed, reject the same and refuse to open such a ballot.
18. It can be seen that the term 'Stipendiary Magistrate' or a 'Gazetted Officer' of the District is not defined by any of these Rules. In want of any definition and this being the part of directions to the electors, it is common knowledge of the electors with regard to these officers that should be determinative rather than finding the technical connotations of such terms. For this is a mere instruction and not a part of any rule. On the other hand, the authority before whom the attestation of the signature could be made by the concerned elector desiring his exercise of right by postal ballot to the election is clearly indicated. In fact, that appears to have been sufficiently stated in instruction (b) to which we have already made a reference, in that it states the elector has to sign the declaration in form 13-A in the presence of a Stipendiary Magistrate or any other Officer competent to attest his signature. What is emphasised by this instruction is the competency of either the Stipendiary Magistrate or any other officer to attest the signature of the elector. Therefore, once it is shown that a Gazetted Officer or a Magistrate of similar type had the competency to attest the signature of the elector, the instruction is fully satisfied. Instruction (f) says that if the declaration is not so attested, then the ballot paper will be rejected. The Special Executive Magistrates, undoubtedly, are appointed by the gazette publication and as such answer the descriptive term 'Gazetted Officer of the District'. Similarly, it is not in dispute that they are competent to attest signatures of persons. Therefore, when an elector approaches such an authority and gets attestation as required by instruction (b), acting upon these directory instructions issued by the Returning Officer, we fail to see how the postal ballots could be rejected by entering upon the debate as to who is the Stipendiary Magistrate or who answers the term 'Gazetted Officer of the District.' The matter is left, as we have indicated above, to the circular and is not made the part of the order. Sufficient and substantial compliance is only necessary when the matter is of direction. Acting upon these instructions, it is possible for the elector to understand that the Special Executive Magistrate, whose appointment is gazetted and who is competent to attest the signature was the right authority to whom the elector could approach for the purpose of attestation. All these ballots in this manner did satisfy the requirements of the instructions and were not liable to be rejected. The contrary view expressed by the Election Commissioner is based on the assumption that these instructions are the part of the order made under Rule 93 itself and that was laid down by the Collector. Both these assumptions are erroneous. Even on the question of the authority of the Special Executive Magistrate, the impugned order does not take into account the detailed instructions of the Returning Officer, particularly instruction (b) in Part II. Once that instruction is kept in view, it is obvious that the elector was directed to approach that authority who was competent to attest the signature.
19. A faint submission was made on the basis of the Bombay Civil Services Rules and the definition of 'Gazetted Officer' in Rule 21 thereof. It must be made clear that that Rule defines 'Gazetted Officer' for the purpose of the Civil Services Rules. Its import is not to govern similar expression as may occur in different statutes. In the Rules with which we are concerned, there is no definition of 'Gazetted Officer' and the term used by directions thus is of Gazetted Officer of the District and not of any other service. While considering such provisions of Election Laws and instructions thereunder, we must give meaning to the whole phrase which is in a different term than the one available in Rule 21 of the Bombay Civil Services Rules. Had it been the statute enacted by the legislature or the authority that makes such a type of rule having use of common connotation, a different question might arise for interpretation. For the purpose of directions issued by the Returning Officer, however, all other parts of the directions have to be kept in view and as indicated above what is of essence is a Gazetted Officer competent to attest the signature of the concerned elector. Once such an officer is there and once that officer has attested the signature, the instructions are fully satisfied.
20. Taking this view, we find that the Election Commissioner was not right in answering issue No 3 in each of these petitions, holding that the attestation by the Special Executive Magistrate was not in accordance with these instructions.
21. In view of the above findings in both these petitions, the Rules will have to be made absolute. As a result thereof, the matters will go back to the Commissioner, Bombay Division, Bombay, dealing with the concerned election causes, for the purposes of opening 56 postal ballots in Writ Petition No. 2797 of 1979 and 240 postal ballots in Writ Petition No. 2819 of 1979 and after scrutinising the same, as required by the Rules, to determine the election results afresh in accordance with the voting figures that will eventually be worked out.
22. The Rule in each of these petitions is made absolute in these terms. The parties represented in these petitions to appear before the Commissioner, Bombay Division, Bombay, on March 16, 1981. The Commissioner then will fix the case for opening of these ballot papers either by himself or by calling the Returning Officer concerned and decide the respective Election Petitions within a period of six weeks thereafter, The parties, who are not represented in these petitions, would be entitled to a fresh notice by the Commissioner. The costs of the petitioners to be paid by the concerned specified Society, being the Maharashtra State Co-operative Bank Ltd. The respondents to bear their own costs.
23. Petitions allowed.