Smt. Nirmala vs U.P. State Election Commission and others

Shyamal Kumar Sen, C.J.—The facts involved in the instant writ petition are that on June, 2000, election for the Office of the Members of the Zila Panchayat was held and the petitioner was declared elected as Member of the Zila Panchayat, Kushinagar from Hata (East) constituency, ward No. 23 in the category of ''Woman General''. Respondent No. 5 Smt. Gangotri also contested in the said ward being ward No. 23. Smt. Gangotri is by caste Jatswal (Kalver] which is in O.B.C. In the said election, polling took place on August 6, 2000 and the counting also took place on the same day and the result was as follows :

Smt. Gangotri (Respondent No. 5).

Secured 20, 1st Preference votes.

Smt. Nirmala (Petitioner) Secured 20, 1st Preference votes.

Smt. Rita (Respondent No. 6) Secured 3, 1st preference votes.

In the aforementioned circumstances, the third named woman Smt. Rita who secured the lowest first preference votes, i.e., 3rd in number should be eliminated first and thereafter, in between Smt. Gangotri and Smt. Nirmala who having secured equal number of first preference votes, there should have been a decision by lot by the Returning Officer. In this connection, Rule 26 of U. P. Zila Panchayats Election Rules may be taken note of. The said Rule provides as follows :

Determination of result. - After all the valid ballot papers have been arranged in parcels according to the first preference recorded for each candidate, the Returning Officer shall proceed to determine the result of the voting in accordance with the instructions contained in Schedule II, to these Rules.

Clause (6) of Schedule II shall also be considered. It appears that clause (6) of Schedule II of U. P. Zila Panchayats Election Rules is relevant for the purpose of determination of the question involved in the instant writ petition. The said clause (6) of Schedule II is set out here-in-below :

"6. If at the end of any count, no candidate can be declared elected :

(a) exclude the candidate who up to that stage has been credited with the lowest number of votes ;

(b) examine all the ballot papers in his parcel and sub-parcel, arrange the unexhausted papers in sub-parcels according to the next available preference recorded thereon for the continuing candidates, count the number of votes in each such sub-parcel and credit it to the candidate for whom such preference is recorded, transfer the sub-parcel to that candidate and make a separate sub-parcel of all the exhausted papers and

(c) see whether any of the continuing candidates has, after such transfer and credit secured the quota.

If, when a candidate has to be excluded under clause (a) above, two or more candidates have been credited with the same number of votes and stand lowest on the poll, exclude that candidate who had secured the lowest number of first preference votes, and if that number also was the same in the case of two or more candidates, decide by lot which of them shall be excluded.

All the sub-parcel of exhausted paper referred to in clause (b) above shall be set apart as finally dealt with and the votes recorded thereon shall not thereafter be taken into account.

On proper interpretation of clause (6) of Schedule II, it appears that the proper procedure which should have been followed in the instant case after elimination of Smt. Rita who secured the lowest preference of three was to have a decision by lot in respect of the other two candidates, namely : the writ petitioner and the respondent No. 5. Admittedly, the said procedure has not been followed.

We must appreciate the stand taken by Shri V. C. Mishra, learned Senior Advocate on behalf of respondent No. 5 who has fairly submitted that in the instant case, proper procedure under clause (6) of Schedule II has not been followed, namely, the decision by lot has not been taken by the returning officer. We are of the view that the returning officer had committed gross illegality in not following the procedure which was incumbent upon him to follow under clause (6) of Schedule II of U. P. Panchayats Election Rules. It is well-settled that when a procedure has been prescribed under the Statute the Administrative Authorities are bound to follow the said procedure and in fact, the said procedure has to be followed and the decision, if required to be taken in a particular manner, has to be taken in that manner only or not at all. The said position has now been settled long line of decision which are mentioned as follows :

Sharif-ud-din Vs. Abdul Gani Lone,

Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others,

Smt. Shyam Sakhi and others v. State Election Commission and others, decided by this Court in C.M.W.P. No. 32421 0f 2000.

Election Commission of India V. Ashok Kumar and others, decided by Supreme Court on August 30, 2000 in Civil Appeal Nos. 6843-44 of 1999.

Taylor v. Taylor (1875) 1 Ch D 426.

AIR 1936 253 (Privy Council)

Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others,

Morgan Stanley Mutual Fund Vs. Kartick Das,

We are of the view that since the same procedure required under the Statute has not been followed by the Returning Officer in the course of counting the action taken by the authority becomes null and void. The proper course in that event is to direct the Returning Officer to follow the procedure under clause (6) of Schedule 11 of U. P. Panchayats Election Rules and to declare the election result by way of lot.

The writ petition stands disposed of with the directions as above. There will be no order as to costs.

Let a certified copy of this order be given to the learned counsel for the parties on payment of usual charges.