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Makwana Mohanlal Punabhai and anr. Vs. C.H. Dave - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Judge
Reported in(1969)10GLR129
AppellantMakwana Mohanlal Punabhai and anr.
RespondentC.H. Dave
Excerpt:
.....by the electorate and the general principle of guidance is that candidate who secures the highest number of votes must be deemed to enjoy the confidence of the voters and must, therefore, be entitled to represent them. but there would be several questions which would incidentally arise before as well as after the actual event of the exercise of the choice by the voters and these have to be provided for in the act and the rules and that is what has been provided for by sub-section (5) of section 6 of the act. therefore, those rules have been given the binding effect of law and in order to deal with a question relating to election, the sections as well as the rules must be read together and these must be read harmoniously so as to give effect, as far as possible, to what has been provided..........of the bhavnagar municipality challenging the validity of rule 43 of the gujarat municipalities election rules, 1964 pursuant to which on a candidate being elected to more than one seats having resigned from the other seat, a candidate obtaining the next highest number of votes was declared elected to the seat which became vacant on account of the resignation. the bhavnagar municipality consists of 40 members to be elected in accordance with the gujarat municipalities act, 1963 (hereinafter referred to as the act'). in special civil application no. 773 of 1968 the facts are that from panvadi 'a' ward, two female voters contested the elections on the female reserved seats (1) patel niruben; and (2) mrs. chandrabhaga karelia, respondent no. 3. patel niruben having secured the highest.....
Judgment:

A.R. Bakshi, J.

1. These are two petitions filed by some of the voters to the elections of the Bhavnagar Municipality challenging the validity of Rule 43 of the Gujarat Municipalities Election Rules, 1964 pursuant to which on a candidate being elected to more than one seats having resigned from the other seat, a candidate obtaining the next highest number of votes was declared elected to the seat which became vacant on account of the resignation. The Bhavnagar Municipality consists of 40 members to be elected in accordance with the Gujarat Municipalities Act, 1963 (hereinafter referred to as the Act'). In special Civil Application No. 773 of 1968 the facts are that from Panvadi 'A' Ward, two female voters contested the elections on the female reserved seats (1) Patel Niruben; and (2) Mrs. Chandrabhaga Karelia, respondent No. 3. Patel Niruben having secured the highest number of votes was declared elected on the reserved seat in the Panvadi 'A' Ward. In the Karchaliapara (West) Ward, two candidates contested the elections (1) Patel Niruben; and (2) Mrs. Naliniben Dave and at the election for that seat, Patel Niruben succeeded in obtaining the highest number of votes, and accordingly she was declared elected from the Karchaliapara (West) Ward also. As Patel Niruben was declared elected from two Wards by virtue of Rule 43 of the Gujarat Municipalities Election Rules, 1964, she resigned from the Panvadi 'A' Ward seat ob 14th June 1968 with the result that respondent No. 3 who was a candidate who had secured the next highest number of votes was declared elected from the Panvadi 'A' Ward. A similar situation also arose as regards the elections In two other wards which is the subject matter of Special Civil Application No. 774 of 1968. One Thakkar Kanubhai had contested the municipal elections on two seats, one in the Navapara Ward and the other in the Darbargadh Ward and he was elected on the seats In both the wards. On 14th June 1968 he resigned from the Navapara Ward and on his resignation Shekh Daudbhai, respondent No. 3, who had obtained the next highest number of votes was declared elected from the said Navapara Ward. The petitioners in both these Special Civil Applications thus on identical facts challenge the validity of Rule 43 pursuant to which the candidate obtaining the next highest number of votes was declared elected. Since both the petitions are based on identical facts and involve the consideration of the same questions relating to the validity of Rule 43 of the Gujarat Municipalities Election Rules, 1964, both the petitions were heard together and are disposed of by a common judgment.

2. Section 6 of the Act is as under:

6. Municipalities to consist of elected councillors:

(1) Every municipality shall consist of elected councillors.

(2) The number of such councillors shall be

(a) 25, if the population of the municipal borough does not exceed 50, 000,

(b) 35, if the population of the municipal borough exceeds 50, 000 but does not exceed 100000,

(c) 40, if the population of the municipal borough exceeds 100000, but does not exceed 200000, and

(d) 51, if the population of the municipal borough exceeds 200000.

(3) Out of the total number of seats of councillors in a municipality there shall be reserved seats for women, Scheduled Castes and Scheduled Tribes as follows, namely:

(a) for women, two seats where the total seats do not exceed twenty five, three seats where total seats exceed twenty five but do not exceed thirty five, four seats where total seats exceed thirty five but do not exceed forty and five seats where total seats exceed forty;

(b) for Scheduled Castes such number of seats, not being less than two as the State Government may determine on the basis of the proportion which the population of Scheduled Castes in the municipal borough beats to the total population therein,

(c) for Scheduled Tribes where the population of Scheduled Tribes in the munici pal brough is not less than five per cent of the total population of the municipal borough one seat or such number of seats as the State Government may determine on the basis of the proportion which the population of Schedu led Tribes in the municipal borough bears to the population therein.

(4) The reservation of seats for women, the Scheduled Castes and the Scheduled Tribes made under this Act shall cease to have effect on the expiry of twenty yean from the commencement of the Constitution of India:

Provided that nothing in this sub-section shall render any person elected to any of Such reserved seats ineligible to continue as a councillor during the term of the office far Which he or she was validly elected, by reason only of the fact that the reservation of seats has so ceased to have effect.

(5) Subject to the provisions of this Act, an election shall be held in accordance with the rules made by the State Government in that behalf.

(6) The names of all councillors elected to any municipality at a general election held in accordanse with the provisions of Sub-section (5) shall be notified in the Official Gazette and upon the issue of such notification, the Municipality shall be deemed to be duty constituted notwithstanding any vacancy due to failure to elect the full number of councillors which under this section might be elected.

(7) Except with the sanction of the State Government the date of publication of the names under Sub-section (6) shall not be later than twenty-one days from the date of the declaration of the result of the election:

Provided that nothing in this sub-section Shall be deemed to affect the validity of an election merely by reason of the publication of names after the expiry of aforesaid period of twenty-one days.

Explanation: For the purposes of this section,

(a) 'Scheduled Castes' means such castes, races or tribes or parts of, or groups within, such castes, races or tribes as are deemed to be Scheduled Castes in relation to the State of Gujarat under Article 341 of the Constitution of India; and

(b) 'Scheduled Tribes' mean such tribes or tribal communities or parts of or groups within, such tribes or tribal communities as are doemed to be Scheduled Tribe in relation to the State of Gujarat under Article 342 of the Constitution of India

It would he convenient here to set out Section 42 of the Act to which we shall have occasion to refer a little later, that section reads as under:

42. Filling up of vacancies.

(1) When any vacancy occurs due to failure to elect the full number of councillors at a general election or due to the non-acceptance of office by a person elected to be a councillor, or due to an election set aside tinder provisions of Sub-section (2) of Section 14, or any vacancy of a president, vice-president or councillor occurs due to any reason the Chief Officer of the municipality and in the absence of the Chief Officer, such officer as the Collector may, by general or special order, designate for trie purpose shall within fifteen days from the date on which the vacancy occurs give a notice thereof to the Collector.

(2) ob receipt of a notice under Sub-section (1) the Collector shall--

(a) in the case of the vacancy of a councillor arrange for holding an election in the manner prescribed by rules made by the State Government within three months from the date of the receipt of the notice, for filling up the vacancy, and

(b) in the case of a vacancy of the president or vice-president, call within twenty-five days from the date of the receipt of the notice a general meeting of the municipality for the election of the president or as the case may be vice-president and the provisions of Sections 31 and 32 shall mutatis mutandis apply to such meeting and election.

(3) If no councillor is elected within a period of three months from the date of the receipt of the notice under Sub-section (1) or if no notice of a vacancy of councillor is received by the Collector within a period of three months from the date on which the vacancy occurred, the Collector shall as soon as possible fill in the vacancy by appointing a person thereto who is qualified to be elected and the person so appointed shall be deemed to have been duly elected under Clause (a) of Sub-section (2).

(4) The name of the person elected or appointed as a councillor under this section shall be notified as soon as conveniently may be, in the Official Gazette.

(5) A person elected or deemed to be elected as a councillor or elected as a president or vice-president under Sub-section (2) shall hold office so long only as the councillor, president or vice-president in whose place he is elected, would have held office had the vacancy not occurred.

(6) Notwithstanding anything contained in Sub-section (2) where any vacancy of a councillor occurs within four months preceding the date on which the term of the municipality expires it shall not be filled.

(7) When the offices of both the president and vice-president become vacant simulta neously, the chairman of such committee as the Collector may authorise in this behalf, shall, pending the eletion of the president exercise all the powers and perform all the functions and duties of the president.

Now it will be observed that there is no provision in the Act against one candidate contesting an election to different seats in two different wards. At the same time the Act does not specifically make any provision as to what is to be done in case one candidate is elected to more than one seats in different wards. For such a case provision appears to have been made in the Gujarat Municipalities Election Rules, 1964, hereinafter referred to as the Rules, framed under Section 277 read with Sub-section (5) of Section 6 of the Act. Section 277 gives power to the State Government to make Rules for carrying out the purposes of the Act. The power to make such rules has been made subject to the condition of the Rules being made after previous publication and there is a provision that all rules made by the State Government shall be laid for not less than thirty days before the State Legislature as soon as possible after they are made, and shall be subject to rescission by the State Legislature or to such modification as the Legislature may make. Sub-clause (5) of Section 6 which has already been quoted above provides that subject to the provisions of the Act, an election shall be held in accordance with the rules made by the State Government in that behalf. The position, therefore, is that the municipal elections made under the Act are held and governed by the provisions of the Act as well as the Rules framed under Section 277 read with Sub-section (5) of Section 6. The effect of Sub-section (5) of Section 6 is that the rules have been given the force of law in so far as they relate to the question of holding of elections and while deciding whether declaration of a candidate as having been elected from a particular ward was valid or not, the provisions of the Act as well as the provisions made in the Rules will require to be read together.

3. The argument of Mr. Mehta appearing on behalf of the petitioners In both the petitions was that Rule 43 made a provision which was in conflict with Sub-section (1) of Section 6 of Act. According to Mr. Mehta every municipality as provided by Sub-section (1) of Section 6 was to consist of elected councillors and that the basic principle of municipal elections was that effect should be given to the voice of the majority of the people and that it was this principle which was violated by Rule 43 of the Rules. According to Mr. Mehta the word 'election' meant and referred to the action of choosing by vote, the exercise of a deliberate choice by the voters and therefore 'election' must mean the action of choosing a candidate by the voters by a deliberate selection by casting their votes. It was the contention of Mr. Mehta that as soon as the voters had cast their votes, they had exercised their choice on the candidate who had secured the highest number of votes, and that it was not thereafter permissible to declare the next candidate as elected since such a candidate could not be said to have secured the highest number of votes and could not be considered to have been chosen by the majority of the voters. Mr. Mehta's contention was that the practical effect of Rule 43 would be to induct a person not elected by the voters and that would be contrary to the principle laid down in Sub-section (1) of Section 6 of the Act. Mr. Mehta's argument was that the act of election, that is, in other words, the expression of the choice by the voters, must exclude anything or any consideration that would happen after the polling and the function of the Returning Officer was only to know in whose favour the choice was expressed and that the process of election was complete as soon as the votes were cast. Now it is true in the general sense that an election means and has reference to the expression of its choice by the electorate and the general principle of guidance is that candidate who secures the highest number of votes must be deemed to enjoy the confidence of the voters and must, therefore, be entitled to represent them. But as regards the question of holding of elections, there are certain provisions which could be made by the Act or by the Rules. Various questions during the process of election might arise, from the time of filing of nominations till the time when a candidate could be said to have been elected. The act of casting votes which is meant for recording the wishes of the voters is no doubt an exercise of its choice by the electorate; but there would be several questions which would incidentally arise before as well as after the actual event of the exercise of the choice by the voters and these have to be provided for in the Act and the Rules and that is what has been provided for by Sub-section (5) of Section 6 of the Act. What has been provided, therefore, in the Act relating to the holding of an election would require to be read with what has been provided on the same subject in the rules, and the word 'election' used in Section 6 will have to be given a wider meaning which would not only include the actual event of the exercise of the choice by the voters but also incidental happenings and questions occurring and arising before and after the votes are cast. It could not, therefore, be said that Rule 43 is invalid because it provides for a process of declaring a candidate who has not secured the maximum number of votes at the time when the votes were cast. By virtue of Sub-clause (5) of Section 6, Rule 43 becomes a part of the law relating to municipal elections and Sub-section (1) of Section 6 of the Act has to be read along with Sub-section (5) of the same section which in terms provides that an election shall be held in accordance with the rules made by the State Government in that behalf. The word 'election' used in Section 6 cannot be confined merely to the act of the voters of casting votes and if that is so, rules could be made in respect of election which could regulate cases which arise on account of the employment of the process of election. In the case before us, as we have already stated, the Act does not prohibit one candidate to stand for election on different seats in different wards and it is possible that the same candidate might be returned as elected on more than one seat. A provision would, therefore, require to be made for such a contingency and that is what has been mads and provided for in Rule 43 which is as under:

43. Multiple election: Any person who is elected to more than one seat shall, by notice in writing signed by him and delivered to the Returning Officer within seven days from the date of publication in the Gujarat Government Gazette of the declaration that he has been so elected, or if such publications have been made on different dates, within even days from the latest of such dates as the case may be, resign all bat one of the seats. In default of such resignation, all the seats of such person in the municipality shall become vacant. On his resigning from all but one seat or in the default of such resignation the person obtaining the next highest number of votes should be declared as elected to the seats in question.

4. Mr. Mehta next contended that Rule 43 was contrary to the provisions made in Section 42 of the Act. It was urged by Mr. Mehta that as soon as the candidates were declared to have been elected and resignation of a candidate who was elected to two seats in different wards to one seat was received, there was a vacancy within the meaning of Section 42 of the Act and that, therefore, the only recourse in such an event would be to arrange for holding an election to the seat which had fallen vacant. It was contended by Mr. Mehta that if Section 42 applied to such cases, then that section would come into conflict with Rule 43. According to Mr. Mehta the candidate who was elected to two different seats could resign so far as regards one of the two seats and that on such resignation, the seat for which resignation was given would become vacant and that if the person obtaining the next highest number of votes was to be declared as elected to the seat falling vacant, that would result in avoiding the procedure laid down in Section 42 of the Act and that so far the provisions made in Rule 43 must be held to be invalid. Mr. Mehta contended that Rule 43 could not be called in aid for the construction of Section 42 of the Act and that if Rule 43 was given effect, that would mean that the election was not made by the electorate but was made by some other extraneous process. Now as already stated, by virtue of Sub-section (5) of Section 6 the rules relating to elections have to be made by the State Government and Sub-section (5) provides that elections shall be held in accordance with those rules. Therefore, those rules have been given the binding effect of law and in order to deal with a question relating to election, the sections as well as the rules must be read together and these must be read harmoniously so as to give effect, as far as possible, to what has been provided for both in the Act as well as in the Rules. Section 42 of the Act deals with filling up of vacancies occurring due to failure to elect the full number of councillors at an election or due to the non-acceptance of office by a person elected to be a councillor, or due to an election set aside under the provisions of Sub-section (2) of Section 14, or any vacancy occurring due to any reason. Rule 43, however, provides for a case of multiple election and to a case of a person who is elected to more than one seat. Rule 43, therefore, is a specific rule as regards such a case of multiple election and, therefore, when a vacancy to the seat occurs on account of the contingency contemplated la Rule 43, it will be that rule that will be applicable and it cannot be said that there is any conflict that will arise between Section 42 and Rule 41. Rule 43 would apply In one case only, that is, the case of multiple election and, therefore, when we read Section 42 and Rule 43 together, ft cannot be said that the provisions of Section 42 are in conflict with and Invalidate Rule 43.

5. It was urged that what has been done by Government by making Rule 43 is something which does not fall within the purview of the word 'election' and, therefore, there was an usurpation of power by the Government in framing Rule 43. But while advancing this argument Mr. Mehta confines himself to the narrow meaning of the word 'election' i.e., the act of choosing the candidate by casting the votes. The elections by virtue of Sub-section (5) of Section 6 have to be held in accordance with the rules made by the State Government in that behalf and these rules could be made to include all matters arising from the starting of the process of ejection to the final determination of the question as to who could be considered as having been elected to the seats.

6. The last argument of Mr. Mehta was that the names of the candidates who bad secured the highest number of votes to both the seats were already published in the Gazette and, therefore, if any vacancy occurred thereafter, it would be Section 42 that would apply and not Rule 43. Sub-section (1) of Section 6 provides that every Municipality shall consist of elected members and Sub-section (5) provides how the members are to be elected. That sub-section provides that the members shall be elected in accordance with the rules framed by the State Government. Rule 43 provides for a specific and a particular type of contingency and it is that rule that would apply in a case where such a contingency occurs. Merely because the names of the candidates who have secured the highest number of votes were notified, it would not affect the operation of rule 43. This argument of Mr. Mehta, therefore, cannot be accepted.

7. As a result of the aforesaid discussion, both the petitions fail and the Rules in both the petitions are discharged with no order as to costs. Mr. Mehta on behalf of the petitioners in both the Special Civil Appli cations asks for leave to appeal to the Supreme Court under Article 133(1)(c) of the Constitution of India. Leave refused.


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