Judgment

RAY, J.: This an appeal by certificate under Article 133 (1) (c) of the Constitution from the judgment dated 18 and 21 December, 1970 of the Bombay High Court.

2. The Bombay High Court issued a writ of quo warranto declaring that respondent No. 3 Dr. Balkrishna Pandurang Apte is not entitled to act as the Vice- Chancellor of the University of Poona in pursuance of the election held on 9 May, 1970 and further restraining him from acting as the Vice-Chancellor.

3. H. V. Pataskar, the Vice-Chancellor of the University of Poona died on 21 February, 1970. The Governor of Bombay who is the Chancellor of the University then nominated Maha Mahopadhyaya Datto Vaman Potdar to act as the Vice -Chancellor until the date on which another Vice- Chancellor was elected under sub-section (1) of Section 11 of the Poona University Act, 1948 (hereinafter referred to as the Act).

4. Under section 12 of the Act the Vice- Chancellor is the principal executive and academic officer of the University. Under Section 11 of the Act the Vice- Chancellor shall be elected by the Court from among three persons recommended by the Executive Council. Section 56 of the Act provides that every election to the office of the Vice -Chancellor and every recommendation for the nomination to the office of the Vice- Chancellor under the Act shall be made by the system of proportional representation by means of a single transferable vote by ballot in such manner as may be prescribed by the Statutes.

5. At the meeting of the Executive Council held on 28 February, 24 March and 18 April, 1970 the Executive Council recommended a panel of three persons. They were Dr. Balkrishna Pandurang Apte. Principal Narayan Ramchandra Kulkarni and Principal Narhar Govind Suru for election to the office of the Vice - Chancellor. These were the three candidates from amongst whom the Court of the University had to elect one as the Vice- Chancellor.

6. The said meeting of the Court of the University was convened under notice dated 22 April, 1970 for 9 May, 1970 for election of the Vice- Chancellor from amongst those three persons. At the election held on 9 May 1970 the total number of votes tendered was 149. One of the votes was invalid. The valid votes were 148. The election was in accordance with S. 56 of the Act by the system of proportional representation by means of a single transferable vote by ballot. The result of the ballot papers appeared to be that Dr. Apte secured 58, Principal Kulkarni 37 and Principal Suru 53 first preference votes. Principal Kulkarni was thus eliminated on the first count on the basis of the lowest number of first preference votes. 8 of the voters who had given first preference votes to Principal Kulkarni had not exercised second preference in favour of either of the remaining two candidates Dr. Apte and Principal Suru. The remaining 29 Voters gave 12 second preference votes to Dr, Apte and 17 second preference votes to Principal Suru. This resulted in both the continuing candidates Dr. Apte and Principal Suru each securing 70 votes on the second count Dr. Apte was declared elected because in the first count, namely, the count previous to the one in which both obtained equal number of votes. Dr. Apte had a clear majority of 5 votes and therefore principal Suru was excluded from the election.

7. The election of Dr. Apte was challenged in the High Court on three principal grounds. First, it was contended that the tie between Dr. Apte and Principal Suru at the second count was to be resolved by drawing of lots, because it was the ordinary practice in elections held under the system of proportional representation by means of a single transferable vote by ballot for election to a single seat that the tie of the above kind must be resolved by drawing of lots. Secondly, it was said that the principal of four colleges, viz., N. D. M. V. P. Samaj s Arts and Commerce College, Sinner; V. P. Mandal s Arts, Science and Commerce College, Thana; Narhar Balwant Thakur Law Col