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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
V.K. Barde S.B. Mhase, JJ.
Tarvindarsingh Mahendrasingh.... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 2162 of 1999, decided on 27-8-1999.
Advocates appeared :
K.G. Navandar, for petitioner.
V.J. Dixit, S.B. Talekar, P.V. Mandlik, R.B. Raghuwanshi, V.M. Humbe with Miss Smita C. Tarra, for respondents.
A.M. Kande, G.P., for the State.
Section 19-Election of Mayor and Deputy Mayor-Procedure adopted invalid and against rules - Election set aside.-Where the challenge was not to the individual votes but to the method in which the voting progressed at the time of election of Mayor and Deputy Mayor, if the procedure adopted, itself is invalid, against the rules, against the principles of democracy and principles of maintenance of secrecy of ballot, then, merely because the elected candidate is elected by a large margin of votes, could not be considered as not disturbing such election. Where the Presiding Officer of the meeting held on 20.4.1999 for the election of Mayor and Deputy Mayor of Aurangabad Municipal Corporation caused breach of secrecy of voting and breach of secrecy of ballot, by giving assistance to the Corporators, who had not asked for such assistance and when there was no reason for giving assistance which resulted in not holding the election in free and fair manner and the circumstances indicated that, undue influence was brought on the corporators at the time of voting. The manner in which the voting has taken place was not expected either under the Act or under the Rules, or, even, under the principles of democracy and secrecy of ballot and voting. So, the entire proceedings with respect to the election of Mayor and Deputy Mayor had to be set aside and quashed. The Corporation must hold fresh election for the post of Mayor and Deputy Mayor. Hence, the election of Respondent No. 4 as Mayor of the Corporation; and the election of Respondent No.5 as Deputy Mayor of the Corporation, are set aside; and the Corporation is directed to hold fresh election for the post of Mayor and Deputy Mayor, as per the provisions of the Act and the relevant Rules.
Section 19-Election of Mayor and Deputy Mayor-Assistance to corporators for voting where corporator blind or suffering from physical disability - Permissibility.-Neither the Bombay Provincial Municipal Corporations Act nor the rules framed under the Act provide for giving assistance to the corporators for election of Mayor and Deputy Mayor on any count. Section 19 of the Act makes provision for the election of Mayor and Deputy Mayor; but there are no provisions regarding the procedure to be followed for the election of Mayor and Deputy Mayor. There cannot be disagreement that if the voter is blind, then he would need assistance for the purpose of voting. There also cannot be disagreement that when because of physical infirmity, a voter cannot put lb.€ mark against the name of the candidate to whom he desire to vote, then assistance can be given to him to put the mark. So if the exigencies are such that the Presiding Officer has to give assistance to a voter to help him cas his vote, then, notwithstanding that there is no such rule, the Presiding Officer can give assistance to such voter in order to enable him to cast his vote. If such a contingency arises, the Presiding Officer shall, in ordinary course, give assistance to the Corporator, who asks for the assistance. Therefore, two things will have to be established; first, that there was demand for assistance; and second, as to why the corporators were demanding assistance.
Sections 19 and 454 and Rules or Conduct of Business, Rule 45 - Election of Mayor and Deputy Mayor-Duty of Presiding Officer to maintain secrecy of voting.-When the rules prescribe that the election of Mayor and Deputy Mayor has to be held by secret ballot, then every voter, and especially the Presiding Officer of the meeting, must ensure to see that secrecy of ballot is maintained. On flimsy grounds, a voter must not be asked to vote in the presence of an assistant, provided by the Presiding Officer. The secrecy of voting would definitely be violated because of the method adopted of giving assistance to some of the voters. A duty is cast upon the Presiding Officer to see that the secrecy of voting is maintained. 1986 Mh LJ 79, Ref.
Schedule O, Chapter II, Rule 1, Clause (n)-Minutes of Meeting Confirmation in subsequent meeting-Not obligatory.-Chapter II of Schedule D to the Bombay Provincial Municipal Corporations Act makes a provision for writing of the minutes in clause (n) of Rule 1. The rule does not provide that such minutes must be confirmed in the subsequent meeting. Only thing is that the minutes are required to be signed by the Presiding Officer of the next ensuing meeting at the time of the next ensuing meeting. A presumptive value can be given to the minutes, which are signed by the Presiding Officer of the next meeting. The presumption is rebuttable. The confirmation of the minutes is not required under this rule and therefore, it cannot be said that all the Corporators, who were present in the next meeting, had confirmed the minutes of the previous meeting. There cannot be estoppel against those corporators; and they can dispute the correctness of the minutes.
V.K. BARDE, J.:---Writ Petition No. 2162 of 1999 is filed for challenging the election of Mayor and Deputy Mayor of Aurangabad Municipal Corporation (hereinafter referred to as ""the Corporation""), held on 20-4-1999 : while the other two writ petitions are filed for challenging the election of Mayor and Deputy Mayor of the Corporation separately by the petitioner Shri Oberoi, one of the Corporators. As these three writ petitions raise common issues, those are being disposed of by this common judgment.
2. The grounds raised for challenging the election of Mayor and Deputy Mayor respondents Nos. 4 and 5 respectively in Writ Petition No. 2162 of 1999 are as follows.
3. The petitioner Shri Dhillon had contested the election of Mayor and Deputy Mayor both on 20-4-1999 against respondents Nos. 4 and 5 respectively : and he lost both the elections.
4. The contention of the petitioner Shri Dhillon is that, at the time of voting, 16 voters were given assistance to vote for the election of the Mayor, and 8 voters were given assistance for the election of Deputy Mayor. No reason whatsoever was there to give assistance to those voters. Respondent No. 6-Smt. Gunjate was then the Mayor of the Corporation and she was presiding over the meeting. She gave the assistance to those voters for the purpose of voting even though the members in opposition were objecting that such assistance be not given.
5. Respondents Nos. 4 to 6 are all active workers of Shiv Sena Party : and they were elected as Corporators on Shiv Sena ticket; while the petitioner contested the election of Mayor and Deputy Mayor on the support of ""Aghadi"", which was in the opposition group in the Corporation. The petitioner Shri Dhillon was associate member of Shiv Sena and many members of Shiv Sena Party, who were the Corporators, were in his favour and they desired and intended to vote in favour of the petitioner Shri Dhillon. So, Shri Dhillon was confident getting elected to the post of Mayor and/or Deputy Mayor on the support of the Corporators, who are members of ""Aghadi"", and of the Corporators of Shiv Sena Party, who were his well-wishers and supporters.
6. The leaders of Shiv Sena Party came to know that there was possibility that some of the Corporators belonging to Shiv Sena Party may vote against the official candidates of Shiv Sena Party for the purpose of post of Mayor and Deputy Mayor. They stop them from voting in favour of the petitioner, they adopted a novel method of giving assistance to those members of Shiv Sena Party, who were likely to cross-vote. By adopting this method, these well-wishers of the petitioner Shri Dhillion from Shiv Sena Party were forced to vote in favour of respondents Nos. 4 and 5. They had to vote under duress, because the assistant provided for the purpose of voting was knowing to whom they had voted. So, they could not vote as per their free will and, thus, the secrecy of voting was violated and the principle of secret ballot was also violated.
7. The petitioners have contended that the Corporations has framed rules with respect to proceeding of the meetings of the Corporation. Those are the Conduct of Business Rules, in addition to the Rules provided under Chapter II of the Schedule of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as ""the Act""). Rule 45 makes a provision regarding how the voting by secret ballot be carried out. By giving assistance to them at the time of casting of the votes, the provisions of Rule 45 were violated by the then Presiding Officer of the meeting respondent No. 6 Mayor.
8. It is contended that none of the voters, to whom assistance was given by the Presiding Officer respondent No. 6 for the purpose of voting, had demanded for assistance. In support of this contention, the petitioner Shri Dhillon, has filed on record the xerox copy of the minutes of the meeting held on 20-4-1999 for the purpose of election of Mayor and Deputy Mayor : and in the minutes, it is specif
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