MAKWANA MOHANLAL PUNABHAI Vs. C H DAVE

JUDGEMENT

(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 reserve 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 on 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 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 Daudbhal 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 Application 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 put-downs 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.) Sec. 6 of the Act is as under:- <SI>6 Municipality 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 0 (b) 35 if the population of the municipal borough exceeds 50 0 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 there 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 municipal borough 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 Scheduled 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 years 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 for 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 accordance with the provisions of sub-sec. (5) shall be notified In the Official Gazette and upon the issue of such notification the Municipality shall be deemed to be duly constituted not with standing 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-sec. (6) shall not be later than twenty-one days from the date of the declaration of the result of the elected: 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 Gujarat under Art. 341 of the Constitution of India; and (b) Scheduled Tribes meant such tribes or tribal communities or parts of. or groups within such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Gujarat under Article 342 of the Constitution of India.</SI> <SI1>GUJARAT MUNICIPAL ELECTION RULES, 1964 - R. 43 - GUJARAT MUNICIPALITIES ACT, 1963 - S. 42, 6(1), 6(5) - SPECIAL CIVIL APPLICATION TO ISSUE A WRIT OF QUO WARRANTO AND MANDAMUS FOR DECLARING R. 43 OF GUJARAT MUNICIPAL ELECTION RULES, 1964 AS ULTRA VIRES AND VOID - CANDIDATE BEING ELECTED TO MORE THAN ONE SEATS HAVING RESIGNED FROM OTHER SEAT - R. 43 PROVIDES THAT CANDIDATE OBTAINING NEXT HIGHEST NUMBER OF VOTES CAN BE DECLARED ELECTED TO VACANT SEAT - R. 43 DOES NOT ULTRA VIRES S. 6(1) OF ACT - R. 43 DOES NOT CONFLICT WITH PROVISIONS OF S. 42 - ELECTION MUST MEAN ACTION OF CHOOSING A CANDIDATE BY THE VOTERS - PETITION DISMISSED.</SI1> It would be convenient here to set out sec. 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.

(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-sec. (1) of sec. 6 of Act. According to Mr. Mehta every municipality as provided by sub-sec. (1) of sec. 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. Mehtas contention was that the practical effect of Rule 43 would be to induct s person not elected by the voters and that would be contrary to the principle laid down in sub-sec. (1) of sec. 6 of the Act. Mr. Mehtas 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 he deemed to enjoy the confidence of the voters and must therefore by 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 he 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-sec. (5) of sec. 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 oil the same subject in the rules and the word election used in sec. 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 his not secured the maximum number of votes at the time when the votes were cast. By virtue of sub-clause (5) of sec. 6 Rule 43 becomes a part of the law relating to municipal elections and sub-sec. (1) of sec. 6 of the Act has to be read along with sub-sec. (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 sec. 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 made and provided for in Rule 43 which is as unde:-