Karnail Singh vs State of Punjab and Others

Rakesh Kumar Jain, J.—The pleaded case of the petitioner is that the Ropar District Cooperative Milk Producers Union Ltd., Milk Plant,

Mohali (hereinafter referred to as the ""Union""), the Barwa Cooperative Milk Producers Society Ltd., Barwa, Tehsil Anandpur Sahib, District

Ropar (hereinafter referred to as the "" Barwa Society"") and the Bhatton Cooperative Milk Producers Society Ltd., Bhatton (hereinafter referred to

as the ""Bhatton Society"") are the societies registered under the provisions of the Punjab Cooperative Societies Act, 1961 (hereinafter referred to

as the ""Act""). The Barwa Society and the Bhatton Society are the members of the Union and falls in zone No. 11 of the Union. The elections to the

Milk Union were held in May 2010 in which the petitioner, being committee member of the Barwa Society, participated and likewise respondent

No. 4 also participated being the representative of Bhatton Society. Petitioner and respondent No. 4 both secured 29 votes and there was a tie

between them, however, the result of the election was declared by way of toss of a coin in which the petitioner was declared elected. Respondent

No. 4 filed the election petition challenging the manner in which the election of the petitioner was held, who was declared elected by way of toss

instead of draw of lots. The said election petition was dismissed on 31.08.2010 by respondent No. 3 and instead of availing the remedy of appeal,

CWP No. 17358 of 2010 was filed which was allowed on 01.12.2010 and the matter was remanded back to the respondent No. 3 to decide the

matter afresh. After the remand, respondent No. 3 allowed the election petition on 27.02.2012 on the ground that the result of the election was

declared in violation of Rule 11(1) of the Punjab Cooperative Societies Rules, 1963 (hereinafter referred to as the ""Rules""). The petitioner

challenged the order of respondent No. 3 by way of appeal u/s 68 of the Act before the Registrar, Cooperative Societies, Punjab, which was

allowed on 31.05.2012. Respondent No. 4 preferred a revision before respondent No. 1 against the order dated 31.05.2012 which has been

allowed vide order dated 22.10.2012 in view of the decision of this Court in the case of Smt. Karnail Kaur Vs. Smt. Balbir Kaur, . The only

argument raised by counsel for the petitioner is that the election, in case of a tie between the two candidates, could also be held by way of spinning

of coin/toss of a coin instead of draw'' of lots as in both the cases, element of chance is involved. He has relied upon a judgment of this Court in the

case of Bharpai v. Nianbhari and another, 1975 PLJ 342 in support of his contention.

On the other hand counsel for the respondents has submitted that there is no provision of toss of coin in the Rules in case of a tie, rather the

Legislature has specifically used the procedure of draw of lots to be undertaken by the Returning Officer or the Presiding Officer as the case may

be. He has referred to Rule 11(1) of the Rules and has also relied upon a decision of this Court in Smt. Karnail Kaur''s case (supra).

I have heard counsel for the parties and perused the record with their able assistance.

The facts are not much in dispute as there is only the issue of interpretation of Rule 11(1) of the Rules, which is reproduced as under:-

11(1) After the counting of the votes has been completed, the candidates who secure a majority of votes shall be declared elected by the Returning

Officer or Presiding Officer, as the case may be. If the number of votes in favour of two or more candidates are equal, the matter shall be decided

by lots drawn by the Returning Officer or Presiding Officer, as the case may be.

A bare look at the aforesaid provision would show that the Legislature has deliberately used the word ""matter shall be decided by draw of lots"",

which is apparently a sing qua non in case of a tie between the two candidates land the word ""by toss of coin"" is conspicuously absent in the

aforesaid provisions which cannot be introduced at the instance of the petitioner, the Returning Officer or the Presiding Offices-Had there been any

intention of using the said method of deciding the tie between the two candidates by way of toss of coin, it could have been provided by the

Legislature in the Rules instead of providing the method of deciding the tie between the two candidates by way of lots to be drawn by the

Returning Officer or the Presiding Officer, as the case may be.

In Bharpai''s case (supra), proviso to Rule 12(5) of the Haryana Gram Panchayat (Co-option of Women Panches) Rules, 1971, was involved in

which also it was provided that in case of a tie between the two candidates, the Presiding Officer shall draw a lot of such candidates and it has

been held that spinning of coin would also include draw of lots.

With utmost respect but due deference, I do not subscribe the view expressed in the aforesaid case as I have taken a view in Smt. Karnail

Kaur''s case (supra), while interpreting Rule 71 of the Punjab Gram Panchayat Election Rules, 1960, which is also para materia with Rule 11(1) of

the Rules. Rule 71 of the Punjab Gram Panchayat Election Rules, 1960, is also reproduced for the ready reference:

Rule 71-Equality of votes.--If, after the counting, of votes equality of votes is found to exist between any candidates and an addition of one vote

will entitle any of those candidates to be declared elected, the Returning Officer (Panchayat) shall forthwith decide between those candidates by lot

and proceed as if the candidate on whom the lot fall has received one additional vote.

In Smt. Karnail Kaur''s case (supra), I have relied upon two decision of this Court in the cases of Harbans Singh v. The State of Punjab and

others, 1984 RRR 561 and Om Parkash Lamba v. State of Punjab and others, 1962 Cur. L.J. 152.

In Harbans Singh''s case (supra), it has been held that lot drawn would tantamount to be securing of one additional vote in favour of the

candidates in whose favour the lot is drawn. It was further held that the mandatory language of the Rule is that the drawing of the lot has to be

''forthwith'', meaning thereby that it has to be the next immediate step. So, certainty being one of the essential attributes of law the Interpretation of

the rule which can give rise to looseness and speculation has to be discarded, and rather it has to be put on a firm and straight footing.

In Om Parkash Lamba''s case (supra), it was observed by the Court that in words and phrases ""the phrase to draw lots"" is to determine an

event by drawing one thing from a number whose marks are concealed from the drawer. The essence of drawing lots is that the drawer himself

should appear unconcerned with the result and the numbers themselves from which, he is to select are concealed from him. It was held that in

throwing a coin in the air, the drawer may be in a position to determine the result. It was further held that it might well be that the State Government

did not wish to countenance the procedure of ''tossing up'' in the election of a President of a democratic assembly, being indignified or improper.

Thus, the view expressed by this Court in Smt. Karnail Kaur''s case (supra) is supported by the views expressed in Harbans Singh''s case

(supra) and Om Parkash Lamba''s case (supra) and in that matter I am inclined to subscribe the view expressed in the case of Smt. Karnail Kaur''s

case (supra). In view of the aforesaid discussion, I do not Lind any merit in the present writ petition and hence, the same is hereby dismissed.