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Balwantrai Bhimbhai Desai Vs. Taluka Panchayat, Kamrai and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appn. No. 472 of 1978
Judge
Reported inAIR1979Guj220; (1980)GLR9
ActsGujarat Panchayats Act, 1962 - Sections 115
AppellantBalwantrai Bhimbhai Desai
RespondentTaluka Panchayat, Kamrai and ors.
Appellant Advocate C.T. Daru, Adv. for; V.J. Desai, Adv.
Respondent Advocate A.J. Patel, Asst. Govt. Pleader, i/b.,; Ambubhai and Diwanji
Cases Referredand (see A. K. Kraipak v. Union of India
Excerpt:
.....presided at meeting was himself candidate for executive committee - president giving his second or casting vote illegal - committee constituted declared as invalid - order passed by additional development commissioner liable to be set aside. - - order 1. an interesting question, which might not be of infrequent occurrence in the present days, arises in this petition and the question is whether the presiding officer of a local authority, who is himself a candidate for election to one of the statutory committees, can preside over the meeting at which the election is held and give a casting vote in case of equality of votes and thereby secure his own election. 4. now, it appears to me that so far as the first ground is concerned, it is not well-founded. in my opinion, therefore, the..........of the statutory committees, can preside over the meeting at which the election is held and give a casting vote in case of equality of votes and thereby secure his own election. the circumstances under which the question has arisen for decision may be briefly adverted to.2. kamraj taluka panchayat is con stituted under section 14 of the gujarat panchayats act, 1961 (hereinafter referred to as 'the act'). there are 25 elected members of the said panchayat. at the relevant time, one of its members was under suspension and another member was disqualifled. at the material time therefore, there were 23 elected members of the said panchayat. under s. 111 of the act, a taluka panchayat has to constitute certain committees and one of such committees is the executive committee which has to.....
Judgment:
ORDER

1. An interesting question, which might not be of infrequent occurrence in the present days, arises in this petition and the question is whether the presiding officer of a local authority, who is himself a candidate for election to one of the statutory committees, can preside over the meeting at which the election is held and give a casting vote in case of equality of votes and thereby secure his own election. The circumstances under which the question has arisen for decision may be briefly adverted to.

2. Kamraj Taluka Panchayat is con stituted under Section 14 of the Gujarat Panchayats Act, 1961 (hereinafter referred to as 'the Act'). There are 25 elected members of the said Panchayat. At the relevant time, one of its members was under suspension and another member was disqualifled. At the material time therefore, there were 23 elected members of the said Panchayat. Under S. 111 of the Act, a Taluka Panchayat has to constitute certain committees and one of such committees is the Executive Committee which has to exercise such powers and perform such functions and duties of the Taluka Panchayat (not being functions pertaining to its Social Justice Committee) as the Taluka Panchayat may assign to it. The strength of the Executive Committee depends upon the total number of elected members of the Taluka Panchayat and, accordingly, where the total number of elected members of the Panchayat is 23, the Executive Committee must consist of seven members. A meeting of the Kamraj Taluka Panchayat was called on Feb. 27, 1978 for constituting its Executive Committee consisting of seven members. At the said meeting, 22 out of 23 members were present. Out of the members who were present, 11 belonged to the Janata Party and the remaining 11 members belonged to the Congress Party. The President of the Taluka Panchayat presided at the said meeting. When the proposal regarding constitution of the Executive Committee 10 was taken up each group of members 9 proposed a panel of 7 members. Be mentioned at this stage that the presi dent was himself a candidate for election to the Executive Committee and his name was included in the panel of the Congress Party. The proposal was then put to vote, Each group voted for its own panel and amongst the persons who cast their votes was the President himself. As the strength of each group was equal, each panel secured 11 votes. In view of the equality of votes, the President gave his second or casting vote under S. 115 and declared that the panel proposed by the Congress Party, which included himself, was duly elected. The petitioner who was present at the meeting, as he is an elected member of the Taluka Panchayat, objected to the President giving his casting vote but the said objection was overruled and the proposal of the Congress Party was declared as passed. The petitioner thereupon preferred a Revision Application before the Development Commissioner under S. 305 of the Act. The said Revision Application was heard by the Additional Development Commissioner who dismissed the same. Hence the present Writ Petition.

3. Two contentions were raised at the hearing of the petition. First, that S. 115, which was a general provision empowering the presiding officer of the meeting to exercise a second or casting vote in all cases of equality of votes, was not attracted when the question before the meeting is in relation to the constitution of the statutory committees and, secondly, that in any case, the President, who was himself a candidate, was disqualified from presiding over the meeting or at least from exercising that part of his powers as the presiding officer which enabled him to give a second or casting vote in case of equality of votes.

4. Now, it appears to me that so far as the first ground is concerned, it is not well-founded. S. 115 reads as under:-

'All questions before a meeting of taluka panchayat or committee thereof shall be decided by a majority of votes of the members present and unless otherwise provided in this Act, the presiding officer of the meeting shall have a second or casting vote in all cases of equality of votes.'

There is a proviso appended to the section with which we are not concerned and it need not, therefore, be cited.

5. It is not uncommon to find that when a body is required to decide questions by a majority of votes of the members present and voting at a meeting of such body the number of members voting on proposal on either side sometimes become exactly equal. The question is as to what should be done under such circumstances. The ordinary law appears to have provided no way out of the difficulty and, therefore, ordinarily the instrument constituting such body provides for the presiding officer of the meeting giving a second or casting vote in cases of equality of votes. The second or casting vote, as it is called, is thus the creature of such instrument including the statute law and its innovation is for the purpose of avoiding the deadlock which would otherwise ensue. As to when resort could be had to the giving of a second or casting vote in cases of equality of votes is a matter which must ultimately depend on the language of the relevant provision.

6. In the instant case, the relevant part of S. 115 provides for the decision of 'All questions' by a majority of votes of the members present and it further provides that 'unless otherwise provided in this Act, the presiding officer of the meeting shall have a second or casting vote in all cases of equality of votes.' (underlining supplied). It would thus appear that all questions before a meeting of a Taluka Panchayat including the question of the constitution of any of the statutory committees are required to be decided by a majority of votes of the members present and that in all cases of equality of votes, unless the Act provides otherwise, the presiding officer of the meeting is to have a second or casting vote. It is not in dispute that there is no other provision in the Act which deals with a situation arising out of equality of votes on the proposal regarding the constitution of the statutory committees of the Taluka Panchayat. Therefore, on a plain reading of S. 115, if there is equality of votes on the question of the constitution of one or more of the statutory committees at a meeting of the Taluka Panchayat, the presiding officer of the meeting would have a second or casting vote unless he is personally disqualified from exercising such vote.

7. It is significant to note in this connection that S. 55, which inter alia deals with the election of the President and Vice-President of a Taluka Panchayat at the first meeting after the constitution or reconstitution of such Panchayat, makes a specific provision in sub-section (5) to the effect that if at the election under the said section, there is an equality of votes, the result of the election shall be decided by lot drawn in the presence of the presiding officer in such manner as he may determine. Similar provision is to be found in sub-section (5) of S. 67 in relation to the election of the President and Vice-President of a District Panchayat at the first meeting called after the constitution or reconstitution of such a Panchayat. These are specific provisions which would exclude the operation of S. 115 and similar S. 135 in cases of equality of votes at such election. Since, admittedly, there is no such provision governing the situation arising out of equality of votes at a meeting of the Taluka Panchayat held for the purpose of constituting one or more of the statutory committees and the legislature has made a specific departure by not making any such provision, S. 115 would be attracted and the presiding officer of the meeting would be entitled to have a second or casting vote. It matters not subject to what follows, that such second or casting vote might turn the scales in the matter of constitution of one or more of the statutory committees of the Taluka Panchayat. Instances are not unknown of such provision having been made in a case of a tie in election of office bearers. In certain statutes in England, provision is made regarding the Chairman having a casting vote in case of equality of votes even in cases of election of alderman or mayor. In my opinion, therefore, the first submission urged on behalf of the petitioner is not well-founded and it must be rejected.

8. On the second ground of challenge under both its head, however, the petitioner stands on a stronger footing. The President of the Taluka Panchayat who presided at the meeting was himself a candidate for the Executive Committee. It is inconceivable that he could have presided over such a meeting. A person presiding over such a meeting might have to give his ruling on any number of questions including a question intimately connected with the proposal relating to the constitution of one or more of the statutory committees. For example, sub-rule (1) of Rule 39 of the Gujarat Taluka and District Panchayats (Procedure) Rules, 1963 (hereinafter referred to as 'the Procedure Rules') casts a duty on the presiding officer to decide all points of order and makes his decision' final. The points accordingly raised might relate to the adequacy of the notice of the meeting, quorum at the meeting, adjournment for want of quorum, the right of a member present to vote and such or similar questions which might have a direct bearing on the ultimate result of the proposal. In the instant case itself the petitioner had raised an objection regarding the right of the President to give a second or casting vote and the said objection was overruled by the President himself. This would show that when the President is himself a candidate for one of the statutory committees, he might have to decide questions which affect his own interest and more often than not, he would be a Judge in his own cause in such situations. Under such circumstances, there would be clearly a conflict between his duty and interest and in normal course, therefore, the President should vacate the chair in favour of the Vice-President, or if he is absent or disqualified on the same o r any other ground, the members present at the meeting should be allowed to choose one of the members present and entitled to vote but who is not a candidate, to preside over the meeting. Since this course was not adopted in the present case and the President, although he was a candidate for the Executive Committee, continued to preside over the meeting and decided an important point or order raised by the petitioner in his own favour, the election must be held to be invalid.

9. In the view which I am taking I am supported by the decisions in R V. White, (1867) 2 QB 557 and Nagappa .v Madras Race Club, AIR 1951 Mad 831 (2) In the former case, under the relevanti statutory provision, the election of councillors of a borough was to be before the mayor and assessors. In other words, the mayor had to act as a returning officer. The mayor in that case was himself one of the outgoing councillors and also a candidate and, therefore, he expressed his inability to act as a returning officer. Thereupon, the council of the borough appointed one of its four aldermen to act for the mayor at the election and to execute all such duties in the place of mayor. The said alderman performed the, duty of the returning officer with the assessors and councillors including the mayor were duly elected. Thereupon a proceeding was initiated for a writ of quo warranto calling upon the mayor to show by what authority he claimed to have, use and enjoy the office of newly elected councillor and the writ was sought, Inter alia, on the ground that he was not 'incapable of acting' as mayor at the election within the meaning of the relevant statutory provision which authorised the council, under such circumstances, to forthwith elect one of the aldermen to execute all the powers and duties in place of the mayor. Blackburn, J. held that the mayor was not disqualified from being elected councillor because he held the office of mayor, but he was disqualified from performing that part of the duty of returning officer which consisted in returning himself, he being interested in the election and that where the mayor was personally disqualified, the right course for the council was to appoint a substitute as they had done in that case. The appointment by the council of a substitute to act in the place of the mayor was, therefore, valid, Mellor, J. expressed the same opinion. He too held that when the mayor was himself a candidate, ipso facto it became necessary forthwith to elect some other person to perform those functions which he would perform if he was not incapacitated from performing them by the fact of becoming a candidate and that, therefore, if the council appointed an alderman in his place, the mayor could be elected a councillor. In the latter case, one of the questions was as to the validity of the election of the members of the Managing Committee of the Madras Race Club. A person who was himself a candidate for the Managing Committee had presided at the meeting at which the election was held. It was held that under such circumstances, it must be held that the election was invalid. The following relevant observations were made on the point:-

'The election is also invalid on the further ground that Mr. Natesan presided at the meeting. He was himself a candidate for the Managing Committee ......Here is an instance where the Chairman was in the position of a quasi-judicial officer, and he had to be judge in his own cause. There was clearly a conflict between his duty and his interest. In the normal course he should have vacated the chair and requested another member who was not a candidate to take it, and this was not done. That a person cannot be a Judge in his own cause is an elementary rule No man can preside at his own election and return himself. These principles are well established, and it is unnecessary to deal with them elaborately. 'Both these decisions establish the principles, therefore, that a person who is a candidate cannot place himself in the position of a returning officer or chairman of a meeting at which the election is to be held.

10. Even the other objection raised as a part of this ground cannot but be decided in favour of the petitioner. When there was a tie on account of equality of votes cast on the proposal with regard to the election of the members of the Executive Committee, the President, who was himself a candidate, resolved the deadlock by giving his second or casting vote. The direct and immediate result of the exercise of the right of giving a second or casting vote was that the panel of which the President was himself a member was declared elected. Since a casting vote is conferred on the office, namely, on the presiding] officer of the meeting, and not on the individual, it is required to be exercised as a fiduciary power in the interest of the institution as a whole (see the Conduct of Meeting by T. P. E. Curry and J. Richard, Twentieth Edition at p. 118). The vesting of such power postulates its exercise in an impartial and bona fide manner and not for one's own benefit. There might conceivably be situations where in order to maintain his impartiality the presiding officer may feel it unwise to exercise his right to use his casting vote and this case presented one such situation. It is unfortunate that the President chose to give his second or casting vote in the circumstances under which it was highly improper for him to have so done. He was himself, a candidate and was, therefore, interested in the outcome of the proposal. It is against all canons of justice for a man to be a judge in his own cause. Under circumstances such as those that are present herein, it would be difficult to believe that a person could have exercised his right of second or casting vote in an impartial or bona fide manner. There was a clear conflict between interest and duty. The casting vote could not, therefore, have been allowed to turn the scales. In a somewhat similar but a less stronger case, when the Chief Conservator of Forests was appointed as one of the members of the Selection Board which had to consider persons including himself for selection, the Supreme Court held that although the Chief Conservator of Forests had not participated in the deliberations of the Committee when his own name was considered, the impugned selection could not be allowed to stand (see A. K. Kraipak v. Union of India, AIR 1970 SC 150). In my opinion, therefore, the constitution of the Executive Committee in the instant case was vitiated also on account of the fact that the President had given his second or casting vote under the circumstances present in the instant case. Even if his action in presiding over the meeting is held to be valid, the President should have refrained from giving his second or casting -vote, notwithstanding the provisions of S. 115 which would have to be relaxed or become inapplicable in such a situation. He should have resolved the deadlock arising out of equality of votes either by putting the proposal for fre3h voting or by adjourning the consideration of the subject to another meeting where a different result could conceivably have come about either on account of presence of the absentee member or for some other reasons, which need not be mentioned and which often turns the scales at such elections.

11. In the result, the Writ Petition succeeds and it is allowed. The decision of the Additional DevelopmentCommissioner upholding the constitution of the Executive Committee is quashed and set aside and the resolution of the Taluka Panchayat by which the said Committee was constituted is declared to be invalid. Rule is according1v made absolute with no order as to costs.

12. Petition allowed.


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