K.A. Namasivaya Mudaliar vs The Revenue Divisional Officer and Another

T. Ramaprasada Rao, J.—The election of the Chairman of Alangulam Panchayat Union Council was conducted on 13th August, 1970. The

petitioner and the second respondent secured at such an election equal votes. It therefore became necessary for the Revenue Divisional Officer

who was in charge of the conduct of the election to draw lots in the presence of other members and act in accordance with Rule 17 of the Tamil

Nadu Panchayat Union Councils (Election of Chairman and Vice-Chairman) Rules, 1960. When he caused the lots to be so drawn and requested

a child of 3 years to be brought in for purposes of picking out the chit in the course of such drawing of lots, the petitioner was not the person

whose name was first drawn. Therefore, the second respondent was declared elected as Chairman of the Panchayat Union Council. It is as against

the method adopted by the first respondent as the person in charge of the election that the present writ petition has been filed and incidentally the

result of the election is challenged.

The main contention of the learned Counsel for the petitioner is that under Rule 17 as above, it is incumbent upon the president of the meeting to

draw lots himself meaning thereby that he should pick up the chits thrown into the hotch pot for being drawn and if he uses the instrumentality of

any other agency, other than himself, neither the letter nor the spirit of the rule is satisfied. According to the learned Counsel, the word, ""shall

appearing in Rule 17 just before the expression, ""draw lots"" being imperative and mandatory, cannot be understood as directory and non-

compliance of such a mandate is fatal to the process and therefore the result of the election is vitiated. On the other hand, the learned Counsel for

the second respondent would state that the drawing of lots is only a method suggested under the Rule and such drawing need not necessarily be

done by the president of the meeting, as there is nothing to indicate either expressly or by necessary implication in the Rule itself that the president

of the meeting is the only person qualified to adopt that method and draw the chit himself and declare the result of that process. In this view, it is

stated that the word, ""shall"" should be understood as directory and not mandatory. It is also rightly said that the method adopted by the first

respondent is the normal process that is usually in vogue in such and similar matters and on almost all occasions when drawing of lots comes up for

consideration.

I may immediately state that it is common knowledge and indeed it is popular that in a case where lots have to be drawn for the declaration of

any result, whether it is in relation to a public act or a private enterprise, generally infants who are not knowledgeable and who are innocent are

called upon to draw chits, which process itself springs from blind chance. This is an accredited method which is in vogue and such a process as

adopted by the first respondent in the instant case cannot be questioned as illegal or beyond his competence.

The question, however, is whether the expression, ""shall draw lots"" can only be understood as giving a mandate to the president of the meeting

to undertake the drawing of lots himself without adopting the usual method in vogue in such circumstances to which I have already made a

reference. The word, ""shall"" used in this rule and for that matter, whenever it is used, sometimes imports an obligation and at other times implies a

direction. But where the thing to be done is a formality relating to a public act, the word, ""shall"" should be understood as directory unless there are

express words interdicting the adoption of any other process than the one indicated by the legislature or the rule making authority. Mr. Mani,

however invited my attention to two decisions of the Supreme Court. In State of Uttar Pradesh Vs. Singhara Singh and Others, , a second class

Magistrate not specially empowered by the State Government to record a statement or a confession u/s 164, Criminal Procedure Code, purported

to record a confession of an accused. In those circumstances, the Supreme Court pointed out that where a mandate is given by a statute that a

particular thing shall be done in a particular manner, such a thing must be done in that way or not at all be done and that the other methods of

performance are necessarily forbidden. The principle laid down therein was evolved on the facts of that case. In many other cases, the Supreme

Court has repeatedly pointed out that the use of the word, ""shall"" itself may not be a guide to interpret the force or the meaning of that word. It

should always be read in the context in which it is used and employed, and as I said already, if an obligation revolves on the doing of a formality or

the performance of a thing which is extremely formal, unless the rule or the statute prohibits the adoption of any other method, the word, ""shall

used for the purpose shall always be understood as directory. In Narbada Prasad Vs. Chhaganlal and Others, , the provisions of the

Representation of the People Act, 1951 were scrutinised by the Supreme Court. It is unnecessary to state that, the Representation of the People

Act, 1951, is a code by itself and every meticulous detail mentioned in every limb* of the section or a sub-section therein,, if not followed, has

been held to lead to fatal results. It is in such circumstances the Supreme Court stated that if there was no compliance with one of the mandatory

provisions of that particular statute, namely, Section 33 (5), there was no power in the Court to dispense with that requirement. The Supreme

Court also added that it is a well understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at

all. These propositions referred to by the learned Counsel for the petitioner are not of universal application. The word, ""shall"" or ""may"" employed

for several purposes have to be understood and interpreted in accordance with the tenor and context in which it is used. In the instant case, in Rule

17, the mandate is to employ a particular process or method. It indicates, as pointed out by Mr. Venugopal, a system which the president of the

meeting should adopt for purposes of declaring the successful candidate, in the event of there being an equality of votes between any two or more

candidates. In such circumstances, the mandate only directs him to draw lets. But it does not compel him to draw the lots himself. If, for purposes

of arriving at a decision, as indicated in the rule, he called upon an urchin to assist him to draw the lots, so that the entire process may be kept

beyond the range of complaint or suspicion, he has done what the rule has required of him to do. There is no irregularity and much less any illegality

in the method adopted by the first respondent. There being no such error in the process, the resultant conclusion and the decision of the first

respondent who accepted the second respondent whose name was first drawn as the successful candidate is the only one that could be arrived at

in the circumstances. The petitioner is seeking a writ of quo warranto. What is stated above is sufficient information for the petitioner to be satisfied

that the second respondent is holding office after he has been duly and regularly elected in accordance with law.

The rule nisi is discharged. The writ petition is dismissed. There will be no order as to costs.