AI Structured Summary
Not yet generated for this judgment
Judgment
Prem Chand Jain, J.—This judgment and order of mine would dispose of Civil Writs Nos. 1613 and 2189 of 1973 as common questions of law and fact arise in both these petitions. In order to appreciate the contentions raised before me by the learned counsel for the parties, it would be appropriate to notice certain salient features which 1 am stating from Civil Writ No. 1613 of 1973, and read as under:--
There is a 2nd Class Municipal Committee in Kot Kapura, District Faridkot, having the strength of 19 members. The petitioners and respondents Nos. 2 to 14 are the 19 members of the Municipal Committee. For constituting Improvement Trust Kot Kapura, three trustees are to be elected from amongst the members of the Municipal Committee. A notice dated 4th May, 1973, was issued to all the members of the Municipal Committee by the Executive Officer for holding a meeting on 11th May, 1973, at 10 A.M. for considering the letter of the Deputy Commissioner for sending the names of three members for election. In pursuance of the nonce, a meeting was held on 11th May, 1973, under the Chairmanship of Chanda Singh, President, respondent No. 2. In the meeting the President announced that the election to the three seats of the trustees would be held one by one and not at the same time, that is, that names for one seat would be proposed and seconded and then the members present would vote for and against the proposed candidate, and after the result is declared, the same procedure was to be followed for electing the trustees to the second and the third seats. In this manner, three separate elections were to be held. Petitioner No. 2 objected to the said course and suggested that on principle one member should have one vote and all the three trustees should be elected in one election. The opinion expressed by the petitioner did not carry any weight and the procedure suggested by the President was followed with the result that the six petitioners under protest walked out of the Committee Room and refused to participate in the illegal election. After the petitioners had left the meeting, the remaining 12 members present elected respondents 7 to 9 as the trustees of the Improvement Trust, Kot Kapura It is in these circumstances that the present petition has been filed calling in question the legality and propriety of the proceedings held on 11th May, 1973, electing respondents 7 to 9 as trustees of the Improvement Trust, Kot Kapura.
Written statements have been filed separately on behalf of respondents 1 and 2 and 7, 8 and 9, in which the material allegations made in the petition have been controverted.
It was contended vehemently by the learned counsel for the petitioners that separate elections could not be held to the three seats of the trustees to be filled by the election of three members of the Committee, that the election of the three trustees was to be held simultaneously and that for electing three trustees, the members present were entailed to cast one vote only. It was also sought to be argued that the procedure followed by the President was wholly illegal and was not warranted by the provisions of section 4 of the Punjab Town Improvement Act, 1922 (hereinafter referred to as the Improvement Act). On the other hand it was contended by the learned counsel for the respondents that as three persons had to be elected, each member was entitled to three votes, that three separate elections could legally be held for filling the three seats and that the procedure followed by the President was perfectly legal and in accordance with law.
After hearing the learned counsel for the parties and giving my thoughtful consideration to the entire matter, in the light of the relevant provisions of the law cited before me, as at present advised, I am of the view that there is considerable force in the contentions of the learned counsel for the petitioners. Section 4 of the Improvement Act provides the constitution of the Trust and reads as under :--
(1) The trust shall consist of seven trustees, namely,--
(a) a chairman,
(b) three members of the municipal committee, and
(c) three other persons.
(2) The chairman and three persons referred to in clause (c) of sub-section (1) shall be appointed by the State Government by notification.
(3) The members of the municipal committee referred to in clause (b) of sub-section (1) shall be elected by the municipal committee.
(4) If the municipal committee does not by such date as may be fixed by the State Government elect a person to be a trustee, the State Government shall, by notification, appoint a member of the municipal committee to be a trustee, and any person so appointed shall be deemed to be a trustee as if he had been duly elected by the municipal Committee
(5) Of the persons referred to in clause (c) of sub-section (1) not more than one shall be a servant of the Government.
Explanation--For the purposes of this section the term servant of the Government does not include a Government treasurer, a person holding a purely honorary office or a person who has retired from the service of the Government.
It may be observed at this stage that is the common case of the parties that no procedure is prescribed either under the Improvement Act or under the Punjab Municipal Act, 1911 (hereinafter referred to as the Act,) or the rules framed there under for electing three members of the Municipal Committee, and that sub-section (3) of section 4 is the only provision which provides for the election of the three members of the three members of the Municipal Committee as trustees to the trust Sub-section (3) only previous that the three members of the Municipal Committee shall be elected by the Municipal Committee.
The contention of the learned counsel for the petitioners was that in the absence of any specific procedure, the ordinary rule that one person is entitled to a single vote, has to be followed, and if any exception was to be made to this rule, then the Legislature would have so provided The argument seems, to be quite plausible. The Improvement Act was enacted more or less for the achievement of better planning and more speedy improvement and expansion of towns which under the Act were found unsatisfactory. Under the Act, members are elected ward wise and thus practically all interests are represented There being no such provision in the Improvement Act, it becomes still more important that the three members from the Municipal Committee should be such as would at least, to some extent, represent all shades of opinion and not only of the majority party in that Committee. This purpose Would be best served by applying the ordinary wholesome rule that every member of the Committee should have only one vote in the election of three members to be held at one and the same time. In that case it would be possible to elect any other person also who does not belong to the majority party to safeguard the interests of others also. This interpretation is also in consonance with the democratic constitution of our country in which provisions have been made for the representation of various interests and for safeguarding interests of minorities in Legislatures, etc., wherever it has been found possible without infringing the structure of democracy. Unless otherwise provided a person is entitled to one vote even where more than one parson are to be elected in the same election. This view of mine finds support from rule 49 which provides the procedure for electing Vice-President, and in case of the election of two Vice-Presidents it is provided that the member shall have only one vote. The learned counsel for the respondents tried to distinguish rule 49 by saying that it is meant for electing a Senior Vice-President and a Junior Vice-President and that benefit of that rule cannot he taken for interpreting the provisions of section 4 of the Improvement Act. To ray mind, the distinction is without any substance. To start with, no distinction has been drawn nor has the two offices been named as Senior Vice-President and Junior Vice-President. It is only when the election takes place that according to the said rule the person getting the highest number of votes is named as the Senior Vice-President while the person getting the next highest number of votes is named as Junior Vice-President. This rule rather lends support to the contention of the learned counsel for the petitioners that generally the procedure that is required to be followed is that even where two persons are to be elected, the elector is entitled to one vote, except in the cases where the Legislature otherwise prescribes.
It was sought to be argued by the learned counsel for the respondents that no procedure having beets prescribed for electing the three members, the members could resort to the provisions of section 29 of the Act and decide the procedure themselves. I am afraid I am unable to agree with this contention of the learned counsel. Section 29 of the Act reads as under :--
Vote of majority decisive. Except as otherwise provided by this Act or the rules, ail questions which come before any meeting of a committee shall be decided by a majority of the votes of the members present, the chairman of the meeting, in case of an equality or votes, having a second or casting vote.
From its bare perusal, it is clear that it has no applicability nor does it lend any support to the contention of the learned counsel for the respondents. This section talks of majority decision, that is, that except in those cases where it is otherwise provided under the Act or the rules made thereunder, any decision taken by the Committee would be governed by the majority rule ; but this section cannot be read to mean that the members proem is a meeting can by majority decide a procedure for electing the members to the trust. Under the Act, in the case of a motion of no confidence against the President a majority of votes of 2/3rd of the members is required while in the case of the appointment of an Executive Officer, 5/8th majority is required. However, under the other provisions, no method is laid as to how a decision is to be taken and in order to eliminate any confusion, this provision has been enacted by saying that rule of majority would prevail except in those cases where it is otherwise specifically provided under the Act or the rules made thereunder.
My attention was also drawn by the learned counsel for the respondents, to the provisions of sub-section (2) of section 8 of the Improvement Act in support of the contention that separate elections could be held to the three seats, it was sough, to be argued that if by holding one election a member from the minority group is elected, and in case he dies or is removed and an election is held under the of aforesaid provision, then the chance of re-electing a member from the minority group gees completely extinct as that seat again would be filled by election where the members belonging to the majority group would be in a position to elect their own man I am again unable to appreciate this contention of the learned counsel. Sub-section (2) of section 8 reads as under :--
When the place of an elected trustee becomes vacant by his resignation, removal or death, the vacancy shall be filed, within two months of the existence of such vacancy being notified to the Municipal Committee by the trust, in the manner provided by sub-section 3 of section 4, provided that if the municipal committee fails to elect a qualified person to fill the vacancy within the period herein prescribed, the provisions of sub-section (4) of the said section shall apply.
From its bare perusal I find that it only provides the procedure for electing a trustee whose seat falls vacant by his resignation, removal or death, end when such an exigency arises, the seat has to be filled in the manner provided by sub-section (3) of section 4. If in such a situation the seat goes to a member belonging to a majority group, then that by itself would be no ground to hold that under sub-section (3) of section 4, three elections are to be held separately for electing three members to the trust. In my view, sub-section (2) of section 8 is of no assistance in deciding the real controversy which depends solely on the interpretation of section 4 of the Act. It has never been the argument of the learned counsel for the petitioners that if any exigency envisaged under sub-section (2) of section 8 arises, then no election can be held or that the seat, though belonging to the minority group, cannot be filled by any member belonging to the majority group, hi the light of the above discussion, I have no hesitation in holding that election to the three seats is one election and an elector is entitled to cast only one vote.
Before parting with the judgment, a preliminary objection raised by the learned counsel for the respondents, may be noticed. It was sought to be argued that the petitioners are not entitled to any relief as no statutory provision of any Act or rule has been infringed. I am unable to accept this contention. The procedure of election followed by the President has contravened the provision of section 4 of the Improvement Act arc the election held on 11th May, 1973, by following that procedure, is illegal, inequitable and without jurisdiction The petitioners have successfully snowed that section 4 envisages a procedure where one election has to be held and the electors arc only entitled to one single vote and three persons who get the highest number of votes, are to be elected as trustees. The preliminary objection, in this view of the matter, has no merit.
No other point was urged on either side.
For the reasons recorded above, I allow these petitions and quash the elections held on 25th march, 1973 and 11th May, 1973. In the circumstances of the case I make no order as to costs.