S.P. SHANMUGHASUNDARAM Vs. MARUDACHALA GOUNDAR AND ORS.

JUDGEMENT

(1.) THIS appeal which concerns the validity of an election to the office of the Chairman of Sircar Samakulam Panchayat Union Council, Coimbatore District reveals a perversity of procedure at the election. The appellant and the first respondent were the rival candidates for the Chairmanship of the Union Council, The election to that office was held at a meeting of the Council held on 24th April, 1962 under the presidency of the Revenue Divisional Officer, Coimbatore. The voting was by secret ballot and of the thirteen votes recorded one was found to be invalid, and the remaining twelve votes were equally distributed between the contesting candidates each securing six votes. Lots were drawn to decide the tie; the chit containing the name of the first respondent Was drawn. Nevertheless the Revenue Divisional Officer (who was the Returning Officer) declared the appellant as elected. This is somewhat a startling procedure which was sought to be justified on the ground that prior to the drawing of lots the Returning Officer had declared at the commencement of the process of drawing lots that the person in whose favour the lot fell should be eliminated and that he whose name was not drawn should be declared elected. It is the case of the appellant, and this is supported by an affidavit from the Revenue Divisional Officer that the latter before proceeding to draw the lots had announced that this was the procedure to be followed. We do not see how an affidavit of this kind could be treated as evidence. We are however prepared to assume for the purposes of this case that the appellant's version is correct.

(2.) THE election was challenged by the first respondent who further prayed that as his name was drawn he should be declared as duly elected as Chairman of the Union Council. The Election Commissioner (District Munsif), Coimbatore, took the view that it was open to the Returning Officer who presided over the meeting convened for the purpose of election, to adopt any method he liked for ascertaining the result by casting lots; he held that the election was valid. This order was, however, quashed by Jagadisan, J., under Article 226 of the Constitution. The learned Judge gave a further direction to the Election Commissioner to restore the election petition to his file and dispose of it in accordance with law. The main point for consideration in this appeal is whether it will be open to the Returning Officer to adopt any procedure different from the accredited or prescribed one for ascertaining the result of the election where there is equality of votes between the rival candidates. Jagadisan, J., has explained the background of the procedure that is generally adopted in deciding the election in the case of equality of votes in the following words:

(3.) IT has then to be considered whether the first respondent is entitled to be declared elected or whether there should be a fresh election; if so from what stage the process of election has to be recommenced. The learned Judge has not given any specific direction on that matter. We, however, consider that it is necessary that a clear direction is given to the Election Commissioner in that matter. Mr. Mohan Kumaramangalam contends that in view of our finding as to the invalidity of the declaration of the result of the election made by the Returning Officer, the entire election should be held to be vitiated and a fresh election should be ordered. We are unable to agree with this contention. Under the Rules the election of the Chairman has to be conducted at a meeting duly convened of the various members of the Panchayat Union Council. That the meeting was properly convened is admitted; that the votes were duly recorded at such meeting is also admitted. Having regard to the equality of the votes between the appellant and the first respondent, the decision of the Returning Officer to decide the result of the election by casting lots should also be held to be correct. There was nothing improper in the casting of lots which followed the usual pattern. But an error crept in in the announcement of the result. The first respondent in whose favour the lot fell was not declared elected, but he who failed to draw the lot, the appellant was erroneously declared as elected. The illegality therefore, consisted in the declaration of the result and not in the election up to that stage. That while casting the lots the different interpretation to the Rules, cannot alter the fact that under the Rules the first respondent alone should be regarded as duly elected. The first respondent will therefore, be entitled to have a declaration from the Election Commissioner that he was duly elected to the office of Chairman of the Panchayat Union Council. The appeal fails and is dismissed with costs.