SUDESH KUMAR AGGARWAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner impugns the election of Ashok Kumar, respondent No. 5, as President of Municipal Council, Kapurthala being illegal and seeks issuance of a writ in the nature of mandamus directing respondents Nos. 1 and 2 to declare him duly elected President of the Municipal Council.

(2.) The election to Municipal Council, Kapurthala was held on 12-1-1998. The petitioner was elected from one of its wards. The Notification of the Government notifying the result of the election was issued on 14-1-1998. The first meeting of the constituted Municipal Council as required under Rule 3 of the Punjab Municipal (President and Vice-President) Election Rules, 1994 (for short to be referred as "1994 Rules"), was convened for 11-4-1998, vide notice dated 7-4-1998 issued by respondent No. 2-Sub-Divisional Magistrate, Kapurthala. Rule 3 of the 1994 Rules requires the convening of the first meeting for administering oath to the elected councillors and for election to the offices of President and Vice-President in that meeting. The meeting held on 11-4-1998 was postponed for 12-4-1998, according to the petitioner, at the instance of respondent No. 6, who is the sitting Minister of the State Government and is an ex-officio Member of the Council. The petitioner as well as respondent No. 5 filed their nomination papers for the post of President. According to the petitioner, respondent No. 6 was openly and actively supporting respondent No. 5. Since out of 23 councillors of Municipal Council, Kapurthala, 12 Councillors had sponsored his name for the post of President, therefore, in order to avoid the defeat of respondent No. 5 the election meeting was adjourned sine die without giving any cogent and justified reasons. The petitioner and his supporters i.e. 12 councillors approached this Court in CWP No. 5606 of 1998 seeking directions from this Court in the nature of mandamus commanding the respondent-authorities to hold the election to the offices of the President and Vice-President of Municipal Council, Kapurthala under the supervision of independent agency and under strict security and also to provide protection to the lives and properties of the petitioners. The petition came up for hearing on 23-4-1998 and this Court issued notice of motion for 11-5-1998 and the case was adjourned for 20-6-1998. However, during the pendency of the said writ petition, respondent No. 2 issued an agenda on 8-6-1998 for holding the elections to the offices of President and Vice-President of Municipal Council, Kapurthala on 10-6-1998. Since the petitioners in the said writ petition were apprehensive of illegalities as they were threatened to vote in favour of the ruling party candidate i.e. respondent No. 5, therefore, they moved Civil Misc. Application No. 13047 of 1998 on 8-6-1998 for the appointment of an independent observe at the election meeting. A copy of the application is annexed as Annexure P-1. The said application came up for hearing on 10-6-1998 at 11 am i.e. the day on which the election meeting was fixed by respondent No. 2 and this Court while issuing notice of the application to the respondents directed the State Counsel to make sure that some senior officer was deputed to see that the election was held on 10-6-1998 in a fair and impartial manner. The State Counsel immediately contacted Deputy Commissioner, Kapurthala on telephone and conveyed her the directions of this Court well before the scheduled time of election meeting. However, no such senior officer was deputed and on the said date i.e. 10-6-1998, the elections to the offices of President and Vice-President were conducted, however, much against the rules and without observing any secrecy at the instance of respondents Nos. 2, 5 and 6. It is further alleged that since the loyalty of certain Municipal Councillors was doubted, they were asked to poll their votes by writing 'yes' as well as 'no' on the ballot papers so as to make it sure that they had polled their votes in favour of respondent No. 5. It was done at the instance of respondent No. 6 who remained present in the meeting hall throughout. He polled his vote after 11 votes were polled in favour of respondent No. 5 and his action demonstrated that no secrecy, whatsoever, was maintained in the election on that day to the office of President. It is further alleged that six absolutely invalid votes of respondent No. 5 were counted as valid votes whereas one vote of the petitioner was declared invalid as a result of which respondent No. 5 was illegally declared elected by a margin of one vote only. The petitioner claims that his allegations stand corroborated and established from the fact that on the aforesaid six votes, Municipal Councillors have mentioned 'yes' as well as 'no' whereas as per the mandatory requirement of rule 4(1) of 1994 Rules, voting for the offices of President and Vice-President shall be by ballot by writing 'yes' or 'no' on the ballot paper and not 'yes' and 'no'. One vote in favour of the petitioner was also illegally declared invalid since the councillor who had caste that vote had tick-marked the same instead of writing 'yes' in front of the name of the petitioner. Respondent No. 5 was illegally declared elected on 10-6-1998 itself and on 12-6-1998 the petitioner filed yet another Civil Misc. Application No. 13298 of 1998 in the pending writ petition No. 5606 of 1998. A copy of the said application is annexed as Annexure P-2. On 12-6-1998, this Court issued notice of the application for 9-7-1998. The petitioner claims the relief inter-alia on the ground that despite the directions of this Court, no senior officer was deputed in the election and the election was held in total disregard of the rules violating secrecy of ballots at the behest of respondents No. 2, 5 and 6. Six Councillors belonged to B.J.P. party whose loyalty was doubted and to ensure that they cast their votes in favour of respondent No. 5, they were asked to mark the ballot papers in the manner that their identity was disclosed. Six councillors had marked the ballot papers by writing 'yes' and 'no' whereas they were to write 'yes' or 'no'. Such invalid votes polled in favour of respondent No. 5 were counted as valid.

(3.) In the written statement filed bys respondent No. 5, preliminary objections have been taken. It is stated that in the election held on 12-6-1998, all the 24 councillors (including the M.L.A. the ex-officio Member) were present. It was commenced at 11 am. The Convener had explained to all the councillors the manner in which they were required to cast their votes and any vote if tick-marked was to be declared as invalid and rejected. Out of the total votes polled, 12 were in favour of respondent No. 5 and 11 in favour of the petitioner and as respondent No. 5 was declared as elected President. Ever since the election, all the ballot papers were lying in a sealed cover with the authorities. Voting being required by ballot, the convener had also announced that the councillors were required to cast their votes by writing 'yes' or 'no' on the ballots. Since there were only two members competing, there was absolutely nothing wrong if on a vote, a person has written 'yes' against one and 'no' against other and, thus, such vote can not be rejected being invalid as per Rule 4(1) of the 1994 Rules and writing 'yes' and 'no' also clarified the intention of the voter. It is further stated that the petitioner has an alternative remedy of filing an election petition under Section 74 of the Punjab State Election Commission Act. On merits, the election of respondent No. 5 as President is claimed to be conducted fairly and as per the rules. Respondent No. 5 has also denied if respondent No. 2 adjourned the election meeting for any extraneous reasons. It is also claimed that in the earlier writ petition, respondent No. 5 was not impleaded and as such, he was not aware of the proceedings before this Court. No such information was received by the Returning Officer at the time of election from this Court.