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High Court Of Madhya Pradesh
S. M. N. Raina and M. L. Malik, JJ.
BHUPENDRA KUMAR JAIN - Appellant
Versus
Y.S.DHARMADHIKARI - Respondents
Misc. Petn. 763 Of 1974
Decided On : 11/28/1975
The word 'candiate' appearing in rule 31 of the M.P. Bar Council Election Rules, 1968, includes 'candidates' also. It is permissible to challenge the validity of the election of more than one candidate by an election petition. [Para 7]
(2) General Clauses Act, 1897 - S. 13 - can be applied in construction of rules framed under any central Act. [Para 7]
(3) Constitution of India - Art. 226 - alternative remedy of election petition available -jurisdiction of High Court not barred-in a proper case relief may be granted - validity of election itself challenged - writ petition may be considered.
The law is almost settled that the High Court would not ordinarily entertain a petition under Article 226 of the Constitution where an equally efficacious remedy is open to the petitioner under the general law.
There is no constitutional bar to the exercise of writ jurisdiction in respect of elections to local co dies, such as municipalities, panchayats and the like; but the High Court may decline to invoke its writ jurisdiction in an election dispute if the alternative remedy of an election petition is available. 1972 JLJ 491, 1971 JLJ 379, AIR 1967 SC 1401, AIR 1965 SC 1321 & AIR 1964 SC 1419 relied on.
The rule of alternative remedy in the context of writ jurisdiction under Article 226 of the Constitution is a rule of convenience and the exercise of discretion' is governed by this rule; but where it is more convenient to all concerned to seek relief by a writ petition, it would not be proper to throw out a petition merely on the ground that an alternative remedy open to the petitioner has not been availed of. [Para 8]
Where the entire election is challenged, an election petition would not be an appropriate remedy. In any case; it cannot be considered as an equally efficacious remedy. Moreover, since these petitions were admitted for hearing by this Court and were not rejected in limine on the ground that an alternative remedy was open to the petitioner, it would not be proper to throw them out on this ground at this stage. [Para 9]
(4) Bar Council Election Rules, 1968 (MP) - Rr. 3 (p) & 32 - no Returning Officer appointed-Secretary may function as Returning Officer.
Under rule 32 of the Rules the Secretary is competent to perform the functions of the Returning Officer where no other person is appointed as Returning Officer by the Council. [Para 21]
(5) Interpretation of statutes - rule of harmoneous construction - may be applied in interpretation of Rules made under an Act. [Para 19]
(6) Advocates Act, 1961 - S. 8 - term of the Bar Council expired - member continues to hold office until the publication of the result of election of his successor.
Sub-section (1) of section 8 of the Act has fixed the term of office of the members of the Bar Council as four years; but from sub-section (2) of the said section it is clear that a member of the State Bar Council does not automatically cease to hold office on the expiry of his term and, notwithstanding the expiration of his term of office, he continues to hold office until the publication of the result of the election of his successor. [Para 22]
(7) Bar Council Election Rules, 1968 (MP) - R. 31 (8) - one voter not allowed to vote - this fact does not vitiate the election.
An election cannot be challenged on the ground that one of the voters was not allowed to vote.
It is clear from sub-rule (8) of rule 31 that any error or irregularity in the conduct of an election, which is not of a substantial character, cannot be a ground for challenging the election. An error or irregularity, which does not materially effect the result of the election, must be construed as one not of a substantial character within the meaning of the said sub-rule. [Para 23]
(8) Bar Council Election Rules, 1968 (MP) - R. 21 - provisions mandatory - preferences must be written in international figures and not in Roman figures - common sense - rule of interpretation.
According to clause (b) of rule 21, a voting paper is liable to be rejected as invalid if the marking on the voting paper is not in the international form of Indian numerals such as 1, 2, 3 etc.
There can be no doubt that where the preferences are indicated in the form of Roman numerals, such as, I, II, III, IV, etc., it is not in accordance with the rules and a voting paper is liable ,to be rejected on this ground being in contravention of the provisions of rule 21 of the Rules. [Para 25]
There can be no doubt that rule 21 is mandatory and must be strictly complied with; but strict compliance does not mean compliance divorced from common sense.
Where in the voting paper a voter has indicated his 2nd, 3rd and other successive preferences by the figures ‘2’, ‘3’ and so on, the voting paper is not liable to be rejected merely because the figure 1' relating to the first preference resembles the Roman numeral 'I'. [Para 26]
(9) Bar Council Election Rules, 1968 (MP) - R. 30 (1) - completion of the count - what is.
The expression 'completion of the count' means 'completion of the process of counting' which would include both acceptance of valid votes and rejection of invalid votes. Merely because there was some error in accepting or rejecting a vote it does not mean that the process of counting itself was not completed. [Para 32]
( 1 ) THIS is a petition under Articles 226 and 227 of the Constitution.
( 2 ) THE petitioner is an Advocate practising in the High Court of Madhya Pradesh at Jabalpur and is as such a voter having a right to vote at the elections of the madhya Pradesh State Bar Council (hereinafter referred to as 'the Council'), The elections of the members of the Council were held on 4-5-1974 and the result was published by the Secretary of the Council (respondent No. 2) on 4th June, 1974 vide Annexure A. Respondents 3 to 22 were declared duly elected and their names were published in the Madhya Pradesh Gazette, dated 21st June, 1974.
( 3 ) THE petitioner has challenged the election of respondents Nos. 3 to 22 as contrary to law on the following, among other grounds :
(1) The term of office of the members of the previous Council expired on 19-10-1973 and, therefore, there was no validly constituted council thereafter competent to hold the elections of the present council under the Bar Council of Madhya Pradesh Election Rules, 1968 (hereinafter referred to as 'the Election Rules' ). (2) No Returning Officer was appointed by the State Bar Council as required by Clause (p) of Rule 3 of the Election Rules. The Secretary of the Council, who performed the functions of the Returning Officer at the elections, was not legally competent to discharge those functions and as such the election of respondents 3 to 22 as member of the Council is wholly void. (3) In the extract of the list of voters supplied to the Polling Officer for Indore polling centre, the name of Shri Basanti-lal Barania, advocate, was omitted even though his name was on the electoral roll at S. No. 1 in the supplementary list of the electoral roll prepared by the Council. Shri Barania was, therefore, not permitted by the Polling officer to cast his vote and this vitiated the entire election. (4) Three hundred votes were wrongly rejected on the ground that the voter had indicated his first preference, by the Roman 1' and not by figure 1'.
( 4 ) IN another petition, Misc. Petition No. 666 of 1974, the petitioner Shri R. C. Pandey, Advocate, Jabalpur who was one of the contesting candidates at tne election but lost, has challenged the election of respondents 3 to 22 on some of the grounds specified above. The additional ground on which the election of the aforesaid members has been challenged is as follows :
"the names of the contesting candidates were printed on the ballot papers in alphabetical order and not in the order in which the nomination papers were filed and this caused prejudice to the petitioner. "
( 5 ) BOTH the petitions were heard together as they involve several common questions of Law and they will be considered in this order.
( 6 ) BEFORE dealing with these petitions on merits, we propose to consider the preliminary objection raised by the respondents that the petitions are liable to be thrown out as petitioners had the alternative remedy of challenging the elections by an election petition under Rule 31 of the Election Rules. The relevant sub-rules of the said rule ere as follows :
"31. Disputes as to the validity of Election:-- (1) Any voter may contest the validity of the election of a candidate declared to have been elected to the Council by a petition signed by him and supported by an affidavit and delivered to the Secretary personally or sent by registered post so as to reach him within 15 days from the date of publication of the results of the election. (2) ** ** ** (3) ** ** ** (4) All disputes arising under the above sub-rule shall be decided by a tribunal to be known as Election Tribunal comprising of 3 Advocates whose names are on the State Roll and who are not less than of 10 years standing. (5) The Election Tribunal shall be appointed by Bar Council on or before the date on which the time of the election is fixed under Rule 4. Where there is or are one or more vacancies in the tribunal by reason of death, resignation or any cause whatsoever, the same
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