A.P.SEN J. -
(1.) THIS order shall also govern the disposal of Miscellaneous Petition No. 90 of 1969, Durgadas v. Ganpati Upasrao Ghode and others, heard along with this application.
(2.) BY these two applications, the petitioners challenge the validity of the election of the President and of the Senior Vice-President of the Municipal Council, Pandhurna, held at its first meeting called for that purpose on 13th February 1969. The petitioner Vasant Rao Parhate in Miscellaneous Petition No. 89 of 1969 is one of the elected Councillors, an 1 he challenges the election of one Ghanshyam, the respondent No. 1 therein, who has been elected as the Senior Vice-President of the Municipal Committee; while, the petitioner Durgadas in Miscellaneous Petition No. 90 of i969, challenges the election of Ganpati Upasrao Ghode, the respondent No. 1 in that petition, who has been declared elected as the President of the Council. At the first meeting of the Council held under the aegis of the Sub-Divisional Officer, Saunsar, the election of the President and two Vice-Presidents was held by ballot, under Rule 9 (2) of the Madhya Pradesh Municipalities (President and Vice Presidents) Election Rules, 1962 (hereinafter referred to as "the rules"). The petitioners challenge the validity of these elections, on the following two grounds:
(1) That Rule 9 (2) of the rules which provides for the election of the President and Vice-Presidents by ballot is ultra vires the State Government of Madhya Pradesh being in conflict with sections 62 (3), read with sections 43 and 55 (2) of the Madhya Pradesh Municipalities Act, 1961 (Act No. 37 of 1961); (2) That the nomination-papers of the President and the Senior Vice-Presidents not having been filled by their respective proposers, in the manner required by Rule 4(1) of the rules and not being in conformity with Form A prescribed thereunder, the respective respondents' No. 1 in these petitions, cannot be regarded as candidates duly nominated for election as President and Senior Vice-President.
As to the first, the contention is largely based on the terms of section 62 (3) (iii), read with sections 43 (4), 55 (2) and 63 of the Madhya Pradesh Municipalities Act, 1961 (Act No. XXXVII of 1961), (hereinafter referred to as "the Act"). It is urged that no doubt the State Government of Madhya Pradesh was empowered under section 43 (4) to make rules for regulating the mode of the election of President and the Vice-Presidents, but nevertheless, that had no power to frame a rule which would defeat either the legislative policy behind section 55 (2) of the mandatory requirements of section 62 (3) (iii). According to the learned counsel, the normal method of holding elections for filling the offices of the President and Vice Presidents must be by a "show of hands", as under section 55 (2) when the first meeting of the Council is called after the election and selection of Councillors, to elect the President and Vice-President, the proceedings of the meeting must be conducted in the manner provided by sections 62 and 63 of the Act. On the strenth of these provisions, it is urged that the election of the President and Vice-Presidents is only a subject for discussion at the first meeting of the Council like any other subjects which may have to be debated in the subsequent meetings thereof, the minutes of which are also required to be recorded like that of any other meetings. No doubt, under section 62 (1) and (2), the minutes of the proceedings of each meeting of the Council have to be drawn up and published, in the manner required. However, the requirement of section 63 (3) (iii), in case an election of the President and Vice-Presidents cannot be complied with, because their election has to be on a "voting by ballot" under Rule 9 (2). It is urged that this rule is in conflict with section 55 (2), read with sections 62 (3) (iii) and (3 of the Act.
For a proper appreciation of these submissions, we think it necessary to set out the relevant provisions of sections 43 (4), 55 (1) and (2), 62 and 63 as also the terms of Rule 9 (2), the validity of which is in question.
"43 (4) The State Government may make rules for regulating the mode and time of election of the President and the Vice-Presidents; *** *** *** 55. First meeting after general election.- (1) The Chief Municipal Officer shall, with the prior approval of the authority prescribed under section 32 within one month of every general election, call a meeting of the elected Councillors as required by section 19 and all provisions contained in this Chapter shall, regarding meetings of the Council as far as may be, apply in respect of the said meeting. (2) The Collector, in the case of Class I and Class II Municipalities and Sub-Divisional Officer, in the case of Class III and Class IV Municipalities shall call the first meeting of the Council soon after the election and selection of Councillors, to elect the President and Vice Presidents.
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(3.) MINUTES of proceedings,-(1) MINUTES of the proceedings at each meeting of a Council or any of its Committee shall be drawn up in Hindi written in Devanagari script and recorded in book to be kept for the purpose separately for the Council and each of its Committee and shall be signed by the Chairman of meeting or of the next ensuing meeting. (2) The minutes of the Council shall be published in the manner prescribed and shall at all reasonable times and without charge be open to the inspection by any inhabitant of the Municipality. (3) The minutes of the proceedings recorded under sub-section (1) shall include- (i) the name of the Councillors present; (ii) the decision of a meeting on every question considered; and (iii) When such decision is not unanimus, the number of votes and the names of Councillors voting for or against such question and the names of those who have remained neutral, whether votes have been taken by division or otherwise. ** *** ** 63. Decision of questions by majority of votes- Except as otherwise provided by or under this Act, all questions brought before any meeting of a Council or any of its committees held under this Act, shall be decided by a majority of the votes of the Councillors present and in the case of an equality of votes, the presiding authority at the meeting shall have a second or casting vote: Provided that in the case of an equality of votes at the election of- (a) the President or Vice-Presidents of the Council; ******** the presiding authority shall not exercise its casting vote, and the result shall be decided by lot. ** *** ** Rule 9 (2) When the number of duly nominated candidates for each of the said office is more than one, the election shall be held by ballot."
In challenging the validity of rule 9 (2), the learned counsel for the petitioners overlooks the significance of the words 'as far as may be' appearing in section 55 (1) which regulates the first meeting of the Council called after general election. The provisions of Chapter III of the Act which generally relate to conduct of business apply, as far as may, in relation to such meeting. Now, the expression 'as far as may be' must be interpreted to mean 'as far as possible', or 'as far as practicable', or 'so far as the circumstances admit' or 'as nearly as can be'. We apprehend the phrase 'as far as may be' in the context in which it appears in the sense of meaning 'as far as possible' in carrying out the business of that meeting. In Potter and Co. v. Burrell and Sons, (1897) 1 QB 97, the expression 'as nearly as possible' was interpreted as indicating only an approximation. In that view, the adherence of section 62 (3) (iii) to the first meeting is out of question because the election in that meeting of the President and Vice-Presidents is by ballot. 6. The essence of a voting by ballot is secrecy which prevents the disclosure of either the identity of voters or the manner of voting for or against a motion. [See Jamva Prasad v. Satva Prakash, 1962 MPLJ 105, per Naik J., where the connotation of the expression 'voting by ballot' in the general law of elections, has been explained with great clarity]. In Crew's Procedure at Meetings, 19th Ed.' pp. 58-9, the different methods of voting are tersely stated, thus:
"The usual methods of obtaining the sense of a meeting are: (1) Voice. This is only adopted when it is obvious that the meeting is practically unanimous. The chairman in this case usually reads the motion to the meeting, exclaims "as many as are of that opinion, say 'aye'," and listens to the voices given in the affirmative. Then he says, "as many as are of the contrary opinion, say 'No'," and pauses to receive the voices given in the negative, By the volume of the voices he judges whether the Ayes or the Noes are in the majority. Then he announces "I think the Ayes (or the Noes) have it". This gives an opportunity for anyone present to demand a vote by show of hands. (2) By Show of hands, which is generally adopted in the first instance; each person having one vote. Voting by show of hands means the ascertainment of the views of those persons present who are entitled to vote and who in fact do hold up their hands, if the chairman's declaration as to the result is challenged. Generally, the relevant regulations provide that the declaration of the chairman as to the correctness of the result is decisive, and any objection as to its accuracy should be made at once. (3) By a division, i. e. regular count of the members for and against the motion. In this case members separate themselves by going into different rooms or lobbies, the counting of members being delegated to tollers, one or two being appointed for each side of the question. (4) By a Poll: i. e. providing an opportunity for every member to cast his vote. In the absence of special provisions, a vote will first be taken on a show of hands, at the end of which any voter may probably demand a poll "