Bombay High Court
Gawaji Alias Gawaja Sawleram Sarode vs State Of Maharashtra And Ors. on 11 July, 1991
Equivalent citations: 1991(3)BOMCR585
JUDGMENT N.P. Chapalgaonker, J.
1. An interesting point has been raised in this petition whether a candidate who has lost election and has filed Election Petition under section 15 of the Bombay Village Panchayats Act, 1958 succeeds in proving that returned candidate was not qualified to be elected, would be entitled for a declaration that he is elected in place of the returned candidate.
2. Election to Village Panchayat, Wadule in Newasa taluka took place on 19-6-1989 and respondent No. 5 herein was declared elected for Ward No. 3. It was the case of the petitioner that the respondent No. 5 is a Christian and does not belong to any of the recognised Scheduled Castes. Since the seat is reserved for the Scheduled Castes respondent No. 5 is not entitled to contest the said election. On this ground, the election came to be challenged by way of Election Petition bearing No. 2 of 1989 before the Civil Judge, Junior Division at Newasa. It was contended by the present petitioner in that Election Petition that the respondent No. 5 herein has stated in his nomination paper that he belongs to Hindu Mahar community whereas in fact he was a Christian and was not belonging to any of the Scheduled Castes. It was prayed in the petition that the election of the respondent be declared void and in his place, the present petitioner be held to have been elected uncontested from Ward No. 3 on reserved seat.
3. Learned Civil Judge, Junior Division at Newasa, who tried this petition, was pleased to hold that the returned candidate does not being to any of the Scheduled Castes and, therefore, was not qualified to contest seats reserved for the Scheduled Caste and was pleased to set aside his election. But he refrained from making a declaration that the petitioner is elected in his place. This judgment and order dated 17-11-1989 passed by the Civil Judge, Senior Division, Newasa has been challenged in this writ petition invoking the powers of superintendence of this High Court under Article 227 of the Constitution of India.
4. Shri V.S. Bedre, learned Counsel for the petitioner, submitted that since there were only two candidates in the field contesting reserved seat from Ward No. 3 and the election of respondent No. 5 was set aside, the logical result should be that the petitioner is declared elected uncontested. Shri Bedre further advanced argument that now it is well established that the votes cast in favour of the candidate who is disqualified on the date of the nomination are thrown away votes and, therefore, are invalid and if as per this proposition the votes cast in favour of the respondent No. 5 are held to be invalid, then all the valid votes cast being in favour of the petitioner, he is entitled for the declaration that he is elected. In support of his contention Shri Bedre relied on the judgment of the Supreme Court in Vishwanatha Reddy v. Konappe Rudrappa Nadgauda and another, and submitted that unlike the British Law on the subject, in India votes cast in favour of the disqualified candidate are to be regarded as invalid. The question of the notice to the disqualification on returned candidate to the voters when they voted is totally irrelevant. He particularly, relied on the observations of the Supreme Court which are as follows:---
"When there are only two contesting candidates, and one of them is under a statutory disqualifications, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the votes who voted for him were aware of the disqualification and no fresh poll is necessary. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, no proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate."
Relying on these observations, Shri Bedre submits that since there were only two candidates in the election in dispute, the petitioner should have been declared elected. Shri Bedre further relied on another judgment of the Supreme Court in the case of Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani and others, wherein the Supreme Court observed that when the election of the President of the Municipal Council under the Maharashtra Municipalities Act is held to be invalid on the ground of disqualification for being a Councillor and when only two candidates contested, the other candidate with valid nomination would automatically get elected for want of contest and fresh poll is not necessary in such a case.
5. It is true that the earlier view that the voters cast in favour of a candidate who is treated as disqualified cannot be treated to be thrown away votes in the absence of the notice to the electorate, taken in the case of Keshav Lakshman Borkar v. Dr. Deorao Lakshman Anande, was dissented and overruling the case. Supreme Court took the view in Vishwanath Reddy's case (cited supra) that votes cast in favour of the candidate disqualified are thrown away votes and can be discarded as such even when there was no notice of such disqualification to the voters.
6. It is also true in both Vishwanatha's case as well as Madhukar G.E. Pankakar's case (cited supra) it was held that when there are only two candidates and if the election of the returned candidate is set aside on the ground of disqualification, other candidate can be declared elected and re-poll is not necessary. But these two cases do not lay down a rule of universal application that in all elections governed by any law, when there were only two candidate and the elected one was later found to be disqualified, the defeated one should be declared elected.
7. It is now well settled that a right to vote or stand as candidate for election is not civil right but creature of statute and must be subject to the limitation imposed by it (see N.P. Punnuswami v. The Returning Officer, Namakkal Constituency Salem Dist. and others), . Therefore, we will have to examine whether under the Bombay Village Panchayat Act, 1958 which governs elections in dispute, such a declaration can be made. Section 84 of the Representation of the People Act, 1951 specifically provides that a prayer made in addition to claiming declaration that the election of all or any of the returned candidate is void, claiming further that he himself or any other candidate has been duly elected. There is no such provision under section 15 of the Bombay Village Panchayat Act, 1958 which governs the election dispute in respect of the Village Panchayat Elections. The only relevant provision which permits the declaration of a candidate other than the returned one is found in sub-clause (b) of Clause (5) of section 15 which reads as follows ---
(5)(b) if, in any case to which Clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected.
Provided that for the purpose of such computation no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown, in giving or obtaining it.
Provided further that after such computation if an equality of votes is found to exist between any candidate and the addition of one vote will entitle any of the candidates to be declared elected, one additional vote shall be added to total number of valid votes found to have been received in favour of such candidate or candidates, as the case may be, selected by lot drawn in the presence of the Judge in such manner as he may determine.
8. It is worthwhile to mention that even in case of corrupt practices which have been dealt with in sub-clause (a), of clause (5), there is no provision to declare petitioner or any other person elected by deducting votes which are proved to have been obtained because of the corrupt practices and the result of the finding of corrupt practice against any respondent is only the direction of fresh election. It is only in sub-clause (b) that a person other than the returned candidate can be declared to be elected i.e. in cases wherein the number of valid votes recorded in favour of the candidate other than the returned candidate are greater in number then such candidate is entitled for the declaration that he is elected. Therefore, right to declare a candidate other than the returned one to have been duly elected is limited under section 15 to the cases wherein the counting has not been properly done. Shri V.S. Bedre also submitted that sub-clause (b) would cover his case in the sense that if the votes cast in favour of the returned candidate of respondent No. 5 are held to be invalid, then the petitioner would be the candidate who has received the largest number of the votes. I am afraid that this cannot be accepted. Situation dealt with in clause (b) is only in respect of the counting. If a candidate is declared to be disqualified and even if votes in his favour are ignored, there would not be any question of scrutiny and computation of votes recorded in favour of other candidate. Therefore, the case at hand is totally outside the ambit of sub-clause (b) of clause (5).
9. Shri Bedre further invited my attention to a judgment of the Division Bench of this Court in the case of Anandrao Tohluji Bagade v. Namdeorao Lalwanji Sontakkey and others, 1978 Mh.L.J. 371 wherein prayer that the petitioner having secured second highest number of votes should have been declared elected was rejected by Division Bench on the count that in cases wherein candidates were more than two, it cannot always be presumed that the pattern of voting in respect of other candidates would have been the same if the returned candidate would not have been in the field and in such case, notice to the voter about the disqualification of the returned candidate would have assumed importance. Help was sought in this case from the judgment of the Supreme Court in Madhukar G.E. Pankakar's case (cited supra) but the Division Bench distinguished it on the count that there were only two candidates in that election whereas in the case before the Division Bench in Anadrao's case (cited supra) number of the candidates was 5. Relying on this observation, Shri Bedre wants to submit that since in the instant case, there are only two candidates, Division Bench's observations actually support the petitioner and he would have been declared elected. The case dealt by the Division Bench in Anandrao's case was in respect of the election under the Maharashtra Municipalities Act. Sub-section (10) of section 21 of the Maharashtra Municipalities Act, 1985 specifically provides for a relief that the petitioner himself or any other candidate may be declared duly elected in addition to calling in question election of the returned candidate and sub-clause (a) of sub-section (10) specifically provided that ---
"(a) The petitioner or such other candidate received sufficient number of valid votes to have been elected."
Therefore, there was a power entrusted with the District Court where the petitioner challenged election under the Maharashtra Municipalities Act can declare petitioner or any other candidate elected in case it is found that he had received sufficient number of valid votes. I do not find such a provision in the Bombay Village Panchayat Act, 1958. If an election is set aside, two courses are open. Either the seat can be filled in by a fresh election or the other candidate left in the field who has secured second highest votes can be declared to be elected. Which of the course is to be provided, is the arena of the legislature and legislature which has made specific provision opting for the second course in the Representation of the People Act by way of section 84 and in sub-section (10) of section 21 of Maharashtra Municipalities Act, has not made an identical provision in the Bombay Village Panchayat Act. It appears that it has favoured a fresh election when the election of a candidate is set aside. It is only in case wherein there is a dispute about counting of votes, recounting can be ordered and if it is found that any other candidate other than the returned one has secured more votes than the returned one, such candidate can be declared elected. Therefore, there is no provision for the declaration of any candidate other than the returned in the Bombay Village Panchayat Act after the judicial determination about the qualification of a candidate or about his involvement in the corrupt practice. That being so, the reliefs which can be granted under the Maharashtra Municipalities Act, 1965 or under the Representation of the People Act, 1951 cannot be compared with the reliefs which can be granted under the Bombay Village Panchayat Act, 1958 in all respect.
10. Shri Bedre, learned Counsel further submits that a principle of interpretation of statutes commonly known as doctrine of implied powers can be brought into play in this case. If the legislature wants to maintain purety of election and see that opinion of the majority of the electorate validly expressed is given effect to, then an authority contesting election petition will have to assume all the powers necessary for arriving at a right conclusion. In support of his contention, Shri Bedre invited my attention to a judgment of the Division Bench of this Court in Maruti Bandu Patil v. Villate Panchayat, Sidhanerli and others, .
11. Doctrine of implied powers is embodied in the maxim "Quando lex aliquid alicue concedit concediture etaid sine quo res ipsa esse non potest." If law gives something to a person it is also deemed to grant all those powers without which it cannot exist. If an authority is authorised to do a duty and if it is impossible to perform that duty, without doing something-else or so , it will have to be presumed that the authority has power to perform that other thing also. Therefore, what is to be presumed under the doctrine of implied powers is ancillary which may be often procedural in nature and which will have to be done in order to perform what the law expressly authorised. In the case of Maruti Bandu Patil cited supra Rule 10(2) of the Bombay Village Panchayat (Sarpanch and Upsarpanch) Election Rules, it was obligatory to take the votes by secret ballot but no elaborate procedure as to how this secret ballot is to be conducted were given in the rules. Question was whether in the absence of the rules, the provision is to be rendered useless or in order to implement the provision which was held to be mandatory, Presiding Officer shall have right to follow necessary procedure not inconsistent with the statutory provision. This, Court held that :
"It is not correct to say that the said provision is impossible of observance. It is well established principle of interpretation of statute that if a statute is passed for the purpose of enabling something to be done, but omits to mention some details which are necessary for the proper and effectual performance of the said work of duty, then the courts are at liberty to infer that the statute by implication confers all necessary powers without which the said duty cannot be performed."
If the legislature directs an authority to do something then the absence of detailed procedure in the statute of such power will not prevent authority from following that procedure. But this principle cannot be extended to add something to the duties imposed by statutes. What should be the reliefs granted in an election petition and what may be the claim which the petitioner can make in such proceeding are substantive questions for which a legislative mandate is very much necessary. The doctrine of implied powers has its own limitations and in respect of election law, the scope of the application of the doctrine of implied powers is further narrowed. This was considered by the Supreme Court in the case of Banwari Dass v. Sumer Chand and others, . Supreme Court was required in this case to consider the provisions of Delhi Municipal Corporation Act. When a returned candidate's election is set aside, he wanted to contend that the petitioner is also guilty of corrupt practice. Question was whether a right of recrimination can be presumed in favour of the returned candidate as is there in section 97 of the Representation of the People Act, 1951. It was contended before the Supreme Court that if the returned candidate is not permitted to lead evidence to establish such a counter-allegation in defence, in a composite election petition of this nature he will be left without any remedy because section 21(1) will make the order of the District Judge in the petition final and conclusive, while sub-section (2) of the same section will bar any other procedure for impeaching the election of the election-petitioner on the ground that he has committed a corrupt practice. Second submission made was that the Mischief Rule as enunciated in Heydon's case (1584)3 Co. Rep. 7- a that the Court should make such construction as shall suppress the mischief and advance the remedy. It was contended that if we presume the right of recrimination is not there to the returned candidate, then the person who was equally guilty of the corrupt practice would get himself elected because of the result of the election petition, his corruption would be protected. Though the Supreme Court recommended for the amendment of the Corporation Act by adding some provisions similar to those contained in section 97 of the Representation of the People Act, 1951, it categorically turned down the contention that the doctrine of implied powers can be brought into play in such a case and the right which is not there by the statute can be presumed to be there. Supreme Court was pleased to observe ---
"In the light of these well-established principles, it is clear that the Court cannot bridge the gap or supply this apparent omission in the Corporation Act with regard to the returned candidate's claim to recriminate, by importing principles of common law or equity, the maxim cases omissus at oblivioni latus dispositioni communis juris relinquitur being inapplicable to the construction of election statutes. A right to file an election petition or a recriminatory petition which, in substance, is a counter-election petition-being the mere creature of statute, unknown to common law, the appellant in the absence of a clear statutory provision, is not entitled to recriminate on any of the grounds mentioned in section 17."
Though Delhi Act considered by the Supreme Court specifically gave a right to the petitioner that he or any other candidate can be sought to be declared elected in place of the returned candidate as an additional prayer in the election petition, the right of recrimination was not there. In the instant case, Bombay Village Panchayat Act does not make a specific provision to give the petitioner a right to pray that he or any other candidate should be declared elected in place of a returned candidate. It will have to be presumed that the legislature wanted in all such cases that electorate should have fresh chance to elect their representative which is always a surer away to assess the opinion of votes. Eventuality of declaring some other candidate other than the returned one elected the Bombay Village Panchayat Act is only limited to the change in the result because of the recounting. After the judicial determination of any allegation against the returned candidate, setting aside of his election should only follow and there is no scope under the statute for declaration that a candidate other than himself is elected. The doctrine of implied powers is to further the intention of the legislature. It cannot be brought into play to supplement intention of the legislature or to substitute the intention which is not there. If the legislature wanted that powers of the Judge acting under section 15 of the Bombay Village Panchayat Act should be limited, it will have to be so.
12. In the result, the writ petition stands dismissed. Rule stands discharged. The Collector, Ahmednagar is directed to hold by-elections for the reserved seat from Ward No. 3 in Wadule Gram Panchayat in Newasa taluka as early as possible. There be no order as to the costs.