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1977 Supreme(Goa) 12
Goa High Court
TITO MENEZES, J.C.
Managing Committee of the Mazania of the Temple of Shri Shantadurga and its branches of Amona, Bicholim - Appellant
Versus
Union of India - Respondents
Special Civil Appln. (Writ Petn.) No. 43 of 1977
Decided On : 3 October 1977
A. Pinto Furtado, for Applicants; J. Dias, Govt. Advocate for Nos. 1 to 5 and 15) and Noronha Rodrigues, for Respondents.
The burden of proof lies on the election petitioner to prove that the prescribed time for voting was not given, and the absence of a specific mention of the time given in the minutes of the election meeting does not necessarily lead to the conclusion that the prescribed time was not given.
Headnote:
ELECTION LAW - ELECTION TO MANAGING COMMITTEE OF TEMPLE - IRREGULARITIES - VALIDITY OF ELECTION - BURDEN OF PROOF - PRESUMPTION OF REGULARITY - INTERPRETATION OF ART. 76 OF DECREE LAW NO. 37, 542.
Fact of the Case:
Petitioners challenged the order of the Administrative Tribunal annulling their election to the Managing Committee of the temple. The Tribunal held that the election was invalid because the prescribed two-hour period for voting was not given. The petitioners argued that the Tribunal erred in drawing this conclusion from the minutes of the election meeting, which did not mention the time given for voting.
Finding of the Court:
The High Court held that the Tribunal erred in concluding that the election was invalid based on the absence of a specific mention of the two-hour voting period in the minutes. The Court noted that there is a presumption of regularity in elections and that the burden of proof lies on the election petitioner to prove that the prescribed time was not given. The Court also held that the Tribunal erred in placing undue burden on the respondents by requiring them to produce evidence to prove that the two-hour voting period was given.
Issues: 1. Whether the Tribunal erred in concluding that the election was invalid based on the absence of a specific mention of the two-hour voting period in the minutes. 2. Whether the Tribunal erred in placing undue burden on the respondents by requiring them to produce evidence to prove that the two-hour voting period was given.
Ratio Decidendi: 1. The Court held that the Tribunal erred in concluding that the election was invalid based on the absence of a specific mention of the two-hour voting period in the minutes. The Court noted that there is a presumption of regularity in elections and that the burden of proof lies on the election petitioner to prove that the prescribed time was not given. 2. The Court also held that the Tribunal erred in placing undue burden on the respondents by requiring them to produce evidence to prove that the two-hour voting period was given.
Final Decision: The High Court allowed the petition, set aside the order of the Administrative Tribunal annulling the election, and remanded the case to the Tribunal for deciding it according to law in light of the observations made in the judgment.
ORDER :- The petitioners pray that the order of the Administrative Tribunal dated June 25, 1977, annulling the election of the petitioners Nos. 2 to 6 to the Managing Committee of the Mazania of the temple of Shri Shantadurga and its branches of Amona, on 13th February, 1977, be quashed.
2. The petitioners were elected on 13-2-1977 as members of the Managing Committee of Shri Shantadurga and the respondents Nos. 6 to 13 were declared defeated, as the petitioners had secured the total of 200 votes and the respondents 155 votes. The election was challenged before the Administrative Tribunal on the ground that several irregularities were committed in the course of elections, which rendered the elections null and void. Various irregularities were alleged before the Administrative Tribunal but the Tribunal considered only one of them and that is that the period of two hours was not given for the voters to cast their votes. The learned Administrative Tribunal held that the period of two hours was not given for the voters to cast their votes and on this single ground annulled the election.
3. In support of their election petition before the Administrative Tribunal the respondents herein, who were the petitioners before the Administrative Tribunal, produced the minutes of the election proceedings and the affidavits of Esvonta Xiva Porobo, Rajaram Vaman Porobo and Ulas Xiva Porobo. The affidavits were not relied upon by the learned Administrative Tribunal because reliance on affidavits was not, according to them, permitted by law. This ruling of the learned Administrative Tribunal was not challenged before me. The respondents have submitted to the finding of the Tribunal. They agree with the Tribunal that the only piece of evidence on which they could rely was the minutes of the meeting. The ruling of the Tribunal appears to be correct. The ruling is based on Art.76 of the Decree Law No. 37, 542 (hereinafter called "the Decree Law"), which reads as follows :-
"Art.76 :- As actas eleitorias fazem prova plena, sendo apenas admissivel prova documental em contrario ou alem do seu conteudo."
No other documentary evidence was adduced. Shri Antonio de Noronha Rodrigues, learned advocate for the respondents, accepts this position as legally correct.
4. In the impugned judgement the learned Tribunal states :-
"In terms of Art.76 of the Decree, the minutes are full proof of whatever happened during the election proceedings. If it is mentioned in the minutes that, in terms of Art.67 of the Decree, the Chairman did not wait for two hours, the legal inference will be that the closing of the voting took place before the expiry of 2 hours time. We think that, when there is nothing in the minutes to show that 2 hours time was observed, it is not possible for us to infer that the chairman ought to have observed the same time, moreover, when on the part of the respondent no evidence whatsoever has been produced. It is not the case of the respondent that all the voters mentioned in the list exercised their right to vote." It appears to me that the reasoning adopted by the Tribunal is not sound. There is no dispute that two hours time must be given for the voters to cast their votes, in view of Art.67 of the "Decree Law". There can be also no dispute that the minutes are full proof of whatever happened during the election proceedings. In the first two sentences of the afore quoted passage the Tribunal lays down a proposition of law. The said two sentences do not contain a finding of fact. As I have said I am entirely in agreement with these two propositions of law. I am however unable to agree with the learned Tribunal that if it is not mentioned in the minutes that the Chairman did not wait for two hours, the legal inference will be that the closing of the voting took place before the expiry of two hours time. The Tribunal drew a conclusion not from what appeared in the minutes of the meeting, but from what did not appear
in the minutes of the meeting.
