Ramesh Padmakar Mhatre vs Kalyan Dombivli Municipal Corporation and Others

S.H. Kapadia, J.—By this Writ Petition, Petitioner seeks to challenge the Declaration Result given by the Chairman of the Standing Committee, Kalyan Dombivli Municipal Corporation dated 14.10.1998. By the said Declaration, it has been declared that Harishchandra alias Bal Gauru Hardas stood elected as the Chairman of the Standing Committee.

The facts giving rise to this Writ Petition, briefly are as follows:

On 14.10.1998, a Meeting of Respondent No. 1 - Corporation was held to elect the new Chairman of the Standing Committee when Respondent No. 2, the outgoing Chairman, presided. A secret Ballot was held. Petitioner and Respondent No. 4 secured equal number of votes. That the 4th Respondent was elected as the Chairman of the Standing Committee on 14.10.1998. However, according to the Petitioner, the said Declaration Result was void and bad in law in view of the fact that the 2nd Respondent declared the 4th Respondent as elected as Chairman of the Standing Committee without giving his Casting Vote in favour of Respondent No. 4. Hence, the present Writ Petition has been filed.

The Petition was admitted on 17.11.1998. The matter was expedited. Accordingly, the matter reached final hearing on 17.12.1998 when the matter was argued.

Mr. Vashi, learned Advocate for the Petitioner submitted that under Rule 2A-17 of the Mumbai Provincial Municipal Corporations Rules, 1995 (as amended), the voting by Ballot has been prescribed. He also invited our attention to Rule 2A-18 and submitted that under the said Rule Ballot voting is required to be taken in the prescribed manner. Mr. Vashi con tended that in the event of there being equality of votes the Presiding Authority is required to cast a Casting Vote in the Ballot Box. Mr. Vashi contended that the actual act of casting the vote is required to be performed by the Presiding Authority. Mr. Vashi contended that, in the present matter, the Minutes of the Meeting indicate that there was no actual casting of the vote by the Presiding Authority into the Ballot Box and, in the circumstances, the impugned Declaration Result was liable to be set aside. In this connection, Mr. Vashi placed reliance on Rule 2A-19 of the above Rules. Mr. Vashi further contended that a bare perusal of the Minutes of the Meeting shows that there was no actual casting of the Casting Vote done by the Presiding Authority. He further contended that the voting at the election for the post of the Chairman of the Standing Committee was by a secret Ballot. He contended that when the voting took place by secret Ballot and when the Petitioner and Respondent No. 4 got equal number of votes then, at that point of time, the 3rd Respondent, as an Election Officer, ought to have issued a Ballot paper to the Presiding Authority (Respondent No. 2) to enable him to exercise his Casting Vote by secret Ballot. Mr. Vasbi contended that in the absence of the Presiding Officer actually putting his Casting Vote in the secret Ballot Box, it must be presumed that the Presiding Authority had refrained from giving his Casting Vote and, in that event, the Presiding Authority was required to declare that the result of the Ballot voting shall be decided by drawing lots as prescribed under Rule 2A-19. Mr. Vashi contended that a bare reading of the Minutes of the Meeting of the Standing Committee held on 14.10.1998 shows that the Presiding Authority had failed to cast his Casting Vote in favour of Respondent No. 4. Mr. Vashi further contended that, at the highest, bare reading of the said Minutes of the Meeting of the Standing Committee held on 14.10.1998 only indicates that the Presiding Authority intended to cast his vote in favour of Respondent No. 4 but there is nothing to indicate that the intention was followed by his actual overt act of casting the vote in the Ballot Box in favour of Respondent No. 4.

We do not find any merit in the contentions advanced on behalf of the Petitioner. Firstly, under Rule 2A-16 of the above Rules, it has been laid down that the Votes shall ordinarily to be taken by show of hands. Under Rule 2A-17 of the above Rules, it is laid down, inter alia, that notwithstanding anything contained in Rule 2A-16, the Corporation may, in cases, of elections and appointments decide to take the voting by ballot. Under Rule 2A-18 of the above Rules, the manner of Ballot voting has been laid down. Under Rule 2A-18(i) it is inter alia laid down that the Ballot paper shall be invalid under certain circumstances which have been prescribed under Clauses (I) to (IV). Under Rule 2A-18(j), it is further laid down that on the close of time fixed, the Balloting Officer shall bring the Ballot Box to the Presiding Authority which shall declare that the Poll is closed and no Ballot paper will be issued after such declaration. Under the said Rule, it is further laid down that, the Presiding Authority, after opening the Ballot Box, shall take out the voting papers from the Box and hand over the same to the scrutineers. Under Rule 2A-18(1), it is further laid down that the Presiding Authority shall read out the names of the candidates in the list and the total number of votes secured by each candidate and the candidate getting the largest number of votes shall be declared by the Presiding Authority to be appointed. Under Rule 2A-19, it is laid down that when there is an equality of votes and the Presiding Authority refrains from giving its Casting Vote, the Presiding Authority shall declare that the result of the Ballot voting shall be decided by drawing lots. Further, under Rule 3(f) of the Proceedings of the Corporation, Standing Committee etc., it is expressly laid down that every question shall be decided by a majority of votes of the members of the Standing Committee present and voting on that question and the Presiding Authority shall have a Second or a Casting Vote when there is an equality of votes. In view of the above Rules, we do not find any merit in the contentions, advanced on behalf of the Petitioner that the Casting Vote should be actually casted in the Ballot Box and that till that is done, there is no casting of the Second Vote or the Casting Vote, and that in the absence of such a Casting Vote, the Court should infer that the Presiding Authority refrained from giving its vote and, therefore, the Presiding Authority was required to declare that the result of the Ballot voting shall be decided by drawing lots under Rule 2A-19 of the above Rules. Rule 2A-18 of the above Rules read with Rule 3(f) mentioned hereinabove indicate that the Casting Vote is a Second Vote. This Second Vote comes into picture when there is an equality of votes. Rule 2A-18(j)(k)(1) indicates that the Presiding Authority is required to open the Ballot Box and to take out the voting papers from the Box and to hand over the same to the scrutineers. Under the said Rules, the Presiding Authority is required to read out the names of the candidates in the list and the total number of votes secured by each candidate. In other words, the balloting comes to an end when the Presiding Authority complies with the provisions of Rule 2A-18(1). It is thereafter and in the event of equality of votes that the Presiding Authority is required to cast his Second Vote or Casting Vote or to refrain from giving the said Vote. If he refrains from giving the Casting Vote then the Presiding Officer is required to declare that the result of the Ballot voting shall be decided by drawing lots. Therefore, the Scheme of the above Rules clearly indicates that the balloting gets over when the stage contemplated by Rule 2A-18(1) is attained whereas Rule 2A-19 deals only with the procedure to be followed by the Presiding Authority in the event of the candidate securing equal number of votes and the Presiding Authority refraining to cast his Casting Vote. There is nothing under the Rules to indicate that for casting the Second Vote the Presiding Officer is required, once again, to put that Vote in the Ballot Box. The act of casting the Second Vote, therefore, cannot be equated to further balloting as is sought to be argued on behalf of the Petitioner. Moreover, there is nothing to indicate under the Rules that the Presiding Authority shall put his Casting Vote in the Ballot Box. On the contrary, Rule 2A-19 clearly indicates that when there is an equality of votes and the Presiding Authority refrains from giving its Casting Vote, the Presiding Authority shall declare that the result of the Ballot voting shall be decided by drawing lots. Therefore, the Scheme of the above Rules indicates that the Casting Vote is a Second Vote and that once the balloting is over as contemplated by Rule 2A-18(1) then there is no question of the Casting Vote being equated to further balloting. Secondly, in the present matter, we have gone through the Minutes of the Meeting of the Standing Committee held on 14.10.1998. The said Minutes clearly indicate that one of the subjects before the Standing Committee in the said Meeting was to appoint the Chairman of the Standing Committee from amongst the members of the Standing Committee as per Section 21 of the Bombay Provincial Municipal Corporation Act, 1949. The said Minutes indicate further that three nomination papers were submitted. That all the nomination papers were valid. That two minutes time was given to withdraw the nomination letter. That one member - Shri Suresh Pingale withdrew his nomination letter and, therefore, his name came to be deleted. That the Petitioner and Respondent No. 4 herein secured equal number of votes, namely, eight votes each. That the total number of votes were sixteen. That since both the Contestants got equal number of votes, the Presiding Authority declared Respondent No. 4 as elected. The Minutes sufficiently indicate that the Presiding Authority declared Respondent No. 4 as elected on inclusion of the Casting Vote given by the Presiding Authority (Respondent No. 2) in favour of Respondent No. 4. Therefore, on the facts of the present case, Rule 2A-19 is not attracted. Thirdly, the Presiding Authority Respondent No. 2 has also filed an Affidavit in reply in which he has clearly stated that he declared the Respondent No. 4 as duly elected on the basis of the Casting Vote given by him as the Presiding Authority in favour of Respondent No. 4 and, accordingly, in the Meeting itself he declared to the members that Respondent No. 4 was duly elected on the basis of his Casting Vote.

In the above circumstances, we do not find any merit in the Writ Petition.

Accordingly, Writ Petition tails. Rule is discharged with no order as to costs.

Interim orders passed by this Court earlier, stand vacated.

Mr. Vashi applies for stay of the above order.

Stay refused.