Parshotam Lal and another vs The State of Punjab and others

M.R. Sharma, J.—This judgment will dispose of Civil Writs Nos. 2570 of 1972 and 3738 of 1972.

Elections to Municipal Committee, Banga, were held on 18th of June, 1972. The first meeting of the Municipal Committee was held on 7th of July, 1972, under the Presidentship of Shri Gurdial Singh, respondent No. 2. At the outset the question regarding the making of co-option was taken into hand The Convener decided that since one member belonging to the Balmiki community has been elected, there was no necessity of making a co-option u/s 12 A of the Punjab Municipal Act, 1911 (hereinafter called the Act). Similarly, he decided that Sarvshri Bachint Singh and Maluk Singh belonging to Lohar community had already been elected, so it was not necessary to co-opt a member from the backward community u/s 12-C of the Act. Since no lady had been elected as a member of the Municipal Committee, the Convenor took in hand the matter regarding the co-option of two lady members to this Committee. The nominations of four ladies were duly proposed and seconded for the two seats. As a result of the voting it was found that Shmt. Daljit had secured 8 votes and Shmt. Susheela Devi, Shmt. Gunmala and Shmt. Prem Lata had secured 6 vates each. Since Shmt. Daljit had polled a majority of votes, she was declared to be co-opted as a lady member, for one seat. For the second seat, the Convener held that since the three lady members had secured equal number of voter, the first meeting of the Municipal Commissioners failed to make a co-option, and he reported this matter to the Government. The Government in its purported exercise of power u/s 12-E of the Act, appointed Shmt. Gunmala as member of the Muncipal Committee. The petitioners have challenged the nomination of Shmt. Gunmala on the ground that the Convener ought to have drawn lots instead of reporting to the State Government that the Muncipal Commissioners failed to co opt one lacy member. In this respect, he has placed reliance on an earlier judgment given by me and reported in Suraj Parkash v. The State of Punjab 1972 C.L.J. 923. In that case 1 had held that the process of co-option of a member is equivalent to an actual election of a Muncipal Commissioner and in case of a tie of votes, the Returning Officer has to draw lots for declaring the result. If a Returning Officer fails to perform his statutory duties then it dots not invent the State Government any jurisdiction u/s 12-E of the Act to nominate a member to the Municipal Committee. Following the view already taken by me, I set aside the nomination of Shmt. Gunmala as a member of the Municipal Committee, and direct respondent No. 2 to draw lots between Shmt. Susheela devi, Shmt. Gunmala and Shmt. Prem Lata, and declare the name of the winner as a duly co-opted member of the Municipal Committee.

The other objection raised by the learned counsel for the petitioners is regarding the nomination of Shri Piara Singh, respondent No. 4 by the Government as a member of the backward classes. The main attack of the learned counsel for the petitioners is that the Convenor decided on 7th of July, 1972 that two persons belonging to the Lohar community having been elected, it was necessary to co-opt another member belonging to the backward classes. The learned counsel has also drawn my attention to rule 3 (2) of the Muncipal Election (Third Amendment) Rules, 1972 which shows that the question whether a member belonging to a particular community has to be co opted or not, has to be decided by the Convenor of the first meeting. According to the learned counsel, one shri Bakhshish Ram who was President of the backward classes'' Association filed a petition before the Deputy Commissioner praying therein that no member belonging to the backward classes had been co-opted as a member of the Municipal Committee and the Government took the impuged decision in an ex-parte manner, which has resulted in the nomination of Shri Piara Singh, respondent No. 4, Rule 2 of the Municipal Election (Third Amendment) Rules, 1972, is as follows:--

In the Municipal Election Rules, 1952 (hereinafter called the '' said rules), in rule 2, in clause (2), the words ''and includes the co-option of a member'' shall be added at the end.

A reading of this rule shows that co-option and actual election have been brought at par. In an election, the entire electorate participate and in a co-option the choice is made by an electoral college. In both the cases the choice is made by secret ballots and it represents the will of the elector. The rule making authority has not equated the process of nominatian with that of election, rightly so because the nomination has to be arbitrary. The rules do not provide any remedy against the illegal nomination made by the Government. Nor do the rules provide for any appeal or revision against any order passed by a Convenor. The Government can, however, have own enquiry conducted under Rule 68 of the Municipal Election Rules and if on such an enquiry a finding is given that a member of a particular class had not been elected and yet the Convener failed to co-opt a member from that class, then it would be open to the Government to take suitable action in the matter. According to the allegations made by the petitioners themselves, one Shri Bakhshish Ram made a representation which was enquired into by the Deputy Commissioner. It Is not doubt true that in this enquiry no notice was given to any of the members of the Municipal Committee, but no right of the members of the Municipal Committee who have already been elected had been taken away. It is settled that when civil rights of a person have not been affected no notice be given to him in an enquiry. The Government in this case merely performed its statutory duties of giving due representation to one of the backward classes. If any of the Municipal Commissioners still feels aggrieved he can file a representation before the State Government under rule 68 to have the matter reviewed. This case would, therefore, have to be decided on the basis that one member belonging to the backward classes had to be co-opted. The State Government could nominate a person under rule 3, sub rule (11) of the Punjab Municipal Election (Third Amendment) Rules. 1972 (hereinafter called the Rules), only if the newly elected members fail to co-opt a number belonging to this category. This rule runs aS follows:--

3(11): In the case of a committee where the elected members fail to co-opt members as required by sections 12 A, 12-B and 12-C in a meeting held under sub-rule (1), sub rule (6) or sub-rule (7), as the case may be, the convener shall report the fact to the State Government within seven days of the meeting.

The expression ''fail to co-opt'' means that a body which is entrusted with this task consciously and knowingly omits to co-opt a member. When the Convener presiding over the meeting does not afford to the newly elected members any opportunity to make the co-option, it cannot be said that such members fail to co-opt a member within the meaning of sub-rule (11) of rule 3 of the Rules. A combined reading of rule 3 (2) and 3 (3) shows that it is the duty of the Convener to ascertain whether co-option as required by sections 12-A, 12-B and 12-C of the Act Is called for or not. He is empowered to hold such enquiries as he may deem necessary for coming to this conclusion. In a given case, he may not even take into confidence the newly elected members. Even if a controversy is raised on this point, the decision has to be given by the Convener. In short, if these Rules are interpreted in the manner in which the Government has interpreted them in the instant case, then the newly elected members could be deprived of an important right at the whim and fancy of the Convener. The entire scheme of the Act shows that the Municipal Committees are formed by elected members. The amendment introduced in the year 1972 has far the first time made a provision for the representation of some of the backward classes, but there again the element of election has not been dispensed with. The newly elected members are allowed to ''make co-options''. The State Government steps in only when they fail to perform their duty. When the elected members are not given any chance to make the co-option because of a faulty decision given by the convener, the State Government should not be allowed to step in and to make a nominal ion. In that event, the State Government should again inform the newly elected members of their right to make a co-option and proceed to nominate a member only when such members fail to perform their duty. It is the admitted case of the parties that no such opportunity was given to the elected members to make a co-option. After the receipt of the enquiry report, the State Government proceeded to nominate Shri Piara Singh forth with. This action of the State Government on a proper interpretation of the Rules appears to be without jurisdiction and deserves to be set aside. I order accordingly and set aside the nomination of Shri Piara Singh as a member of the Municipal Committee, Banga, made by the State Government and further direct the State Government to convene a fresh meeting of the newly elected members of the Municipal Committee for the purpose of making a co-option of one member u/s 12-C of the Act. This petition is consequently allowed but without any order as to costs.

In Civil Writ No. 3738 of 1972, the co-option of Smt. Daljit Kaur has been challenged on the ground that two ballot papers each were given to all the members at the time of the first meeting of the Committee. This matter came up before a Division Bench of this Court in shrimati Samrtra Devi and others v. Shri Ram Niwas LPA No 456 of 1972, L.P.A No. 456 of 1972, decided on November 20, 1972. It was held that such a procedure adopted by the Convener is neither irregular nor illegal. This consideration apart, the petitioners hope to show that because of the alleged irregularity the result of the election has been materially affected. A reading of para No. 5 of the written statement filed by respondent No. 2 shows that he directed the voters to take care that two votes are not cast in favour of one lady member. It is also stated that only one member failed to cast his vote correctly. Under these circumstances, it cannot be held that Smt. Daljit Kaur did not poll a majority of votes.

For the reasons mentioned above. Civil Writ No 2570 of 1972 is allowed to the extent that respondent No. 2 is directed to draw lots between Smt. Susheela Devi, Smt. Gunmala and Smt. Prem Lata. This petition fails qua Shri Piara Singh respondent No. 4. Civil Writ No. 3738 of 1972 also fails and is dismissed. In the circumstances, the parties are left to bear their own costs.