Karnataka High Court
M.R. Gopinath vs Tribunal For Election Disputes Of The ... on 12 November, 2003
Equivalent citations: AIR2004KANT188, [2004]49SCL720(KAR), AIR 2004 KARNATAKA 188, 2004 AIR - KANT. H. C. R. 746
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. Writ petitioner is a member of the Institute of Company Secretaries of India, the second respondent in this writ petition. The Institute is a body corporate incorporated under Section 3 of the Company Secretaries Act, 1980 (hereinafter referred to as 'the Act') Under Section 9 of the Act, the management of the affairs of the Institute required to be performed by the Institute under the provisions of the Act is entrusted to a Council comprising of not more than twelve persons elected by members of the Institute from amongst the Fellows in the manner provided for and from the regional constituencies as notified in this regard by the Central Government in the Official Gazette. It also comprises of not more than four nominated members nominated by the Central Government.
2. The manner of election to the Council to elect the elected representatives is provided under Section 10 of the Act. The Regulations framed under Section 39 of the Act which provide for the method of electing such members and the manner in which the elections are to be conducted and various other aspects. In respect of any disputes arising in the context of such elections, and Election Tribunal as envisaged under Section 2 of the Act appointed by the Central Government examines the disputes and decides the same. For a Tribunal to examine an election dispute, the procedure is that such an election Petition is to be presented to the Council itself, who in turn forwards the petition to the Election Tribunal and the reference by the Council to the Tribunal is always on an application made to the Council by an aggrieved party, who seeks for relief within thirty days from the date of the declaration of the result of the election.
3. Petitioner herein was a candidate in one such election notified as per a Notification issued by the Council on 1-9-2000. The calendar of events indicated that the last date for filing nomination was 16-10-2000, the scrutiny of nomination was on 19-10-2000, the last date for withdrawal of nominations was 8-11-2000, polling was fixed to 8-12-2000, counting was scheduled to be on 18-12-2000 and the declaration of results had been fixed as per the Notification to be on 20-12-2000.
4. The manner of publication of a notification for holding an election is provided for in Regulation 59 of the Company Secretaries Regulations, 1982 (hereinafter referred to as 'the Regulations'). Regulation 59 reads as under :--
"59. Dates of Election - The Council shall notify in the Journal at least ninety days before the date of expiry of the term of the existing Council, the dates fixed for the following stages of election of members of the Council, namely :
(a) the last date and time for receipt of nominations;
(b) the date of the scrutiny of nominations;
(c) the last date for withdrawal of nominations;
(d) the date of polling;
(e) the last date for receipt of applications for permission to vote by post under regulation 84;
(f) the last date for receipt of voting papers by post; and (g) any other date or dates for the conduct of election."
5. The requirement is that the Notification should be issued in the "Journal" which means the official journal published by the Institute under the name and style "Chartered Secretary" and includes a supplement to the journal, at least 90 days before the date of expiry of the term of the existing Council.
6. Though the calendar of events had been notified indicating the dates for the various events, the dates in respect of the last date for receipt of postal votes, the date for counting and the date of declaration of results were subsequently altered by issue of a notification dated 19-12-2000 (copy at Annexure-F), which is said to have been published in the "Economic Times" news daily dated 23-12-2000, New Delhi edition.
7. Petitioner, unfortunately having failed in his effort to get elected to the Council and being aggrieved by the declaration of results, had challenged the said election mainly on the ground that the election had not been held in accordance with the required procedure; that they had not been held according to the Statutory Regulations; that in fact the elections were in violation of such provisions, particularly the issue of subsequent notification dated 19-12-2000 altering some of the dates by the Council in the original calendar of events as had been notified on 1-9-2000 is without valid authority in law; that it was beyond the powers of the Council and as such elections completed on the basis of such subsequent notification and as per the same, has to be declared as null and void and consequently the results also have to be declared so and fresh elections are to be held in accordance with the provisions of the Act and the Regulations.
8. A petition for such purpose had been presented to the Council, who in turn had referred the same to the Election Tribunal as envisaged under Section 10(2) read with Section 87-V of the Company Secretaries Regulations, 1982 (hereinafter referred to as 'the Regulations' for short) and the Election Tribunal having looked into this and being of the view that the election petition was without merit and having dismissed the same, the petitioner, being aggrieved by this decision of the Election Tribunal, has approached this Court praying for quashing the order of the Election Tribunal dated 26-3-2002 (copy at Annexure-W) and for consequential reliefs such as declaring that the entire process of the election conducted by the Council pursuant to the Notification ICSI No. 6 of December 2000 dated 19-12-2000 (copy at Annexure-F) as ultra vires the provisions of the Act and for setting aside the declaration of results in the said election and for other consequential directions.
9. It is urged in support of the petition that the Council does not have the power to issue a notification of the nature and type dated 19-12-2000; that the very notification is not valid in law; that the entire election process and the declaration is vitiated being based on such an illegal notification and that the Election Tribunal has erred in rejecting the prayer of the petitioner and dismissing the election petition. It is urged that the Tribunal has not considered the various grounds urged and the points raised by the. petitioner in the election application and that the application has been dismissed on an incorrect understanding of the Regulations.
10. Sri. K. Parameswaran, learned Counsel for petitioner has contended that the entire conduct of the election is clearly in contravention of the provisions of Regulation 59 of the Regulations, particularly in issuing a subsequent Notification for altering the dates from the original notification only in respect of events only and the Council has no such power to alter the dates partially; that the extension of time for receipt of postal ballots was not an authorised act on the part of the Council and likewise, the refixation of the date of counting as well as the date of declaration of the results. The submission of the learned Counsel in this regard is that the Council, when once it has notified the calendar of events, has no power to alter the same, much less for a partial alteration of the dates for some of the events. It is also urged that the so called change of dates under the impugned Notification dated 19-12-2000 is one totally without jurisdiction; that it is not at all envisaged under the provisions of the Regulations; that the Council should have adhered to the calendar of events as had been notified and also the said change of dates contravening the very requirement of Regulation 59 of the Regulations, as the date of re-notification is not 90 days prior to the expiry of the term of the existing Council, is also bad for this reason and in any view of the matter, the subsequent notification dated 19-12-2000 being not valid in the eye of law, all subsequent events including the declaration of results based on the same is also not valid in the eye of law and consequently the entire action should be declared to be one without authority of law and null and void and the declaration of results set aside. Learned Counsel has also submitted that the Tribunal has totally misdirected itself in examining the issue before it; that a wrong reliance has been placed on the provisions of Regulation 87T of the Regulations which provide for saving the elections from any accidental irregularity or informality in the conduct of the election, which is the only reason given in the order of the Tribunal for dismissing the election petition. Regulation 87T of the Regulations reads as under :--
"87T. Declaration of Results - The name of the candidates elected shall be declared on the date fixed for declaration of results and shall be communicated individually to all candidates who stood for election by registered post and shall also be notified in the Journal."
11. The Tribunal was of the view that the postal strike which came in the way of the postal votes being received in time, particularly within the time permitted for receiving the postal ballots, was an unforeseen accidental event which necessitated the extension of time for receiving such postal ballots by deviating from the original calendar of events and it was at the best, an accidental irregularity in the conduct of elections which is a situation saved under Regulation 87T of the Regulations and the action taken by the Council being bona fide and in good faith and being based on the representations received from candidates who had pointed out that all postal votes had not been received by the last date for receipt of postal votes and as such time was required to be extended and accepting this view of the matter, dismissing the petition with costs, is a total misunderstanding of the provisions, particularly of Regulation 87T of the Regulations and a failure of the function of the Tribunal which is required to act as an Election Tribunal under Section 10(2) of the Act and as such the order requires to be set aside or quashed.
12. Learned Counsel has also urged that Regulation 59 of the Regulations having provided for the manner in which a Notification publishing the calendar of events can be issued, it can be done only in this manner and no other manner; any non-compliance or deviation from the requirement of Regulation 59 of the Regulations is clearly not permitted and amounts to an authority vested with power not acting in accordance with the power so vested in it and in accordance with which it was required to act. In this regard, learned Counsel for the petitioner has placed reliance upon the decision of the Supreme Court in the case of Babu Verghese v. Bar Council of Kerala AIR 1999 SCW 968 wherein the Supreme Court had occasion to hold that certain resolution of the Bar Council of Kerala extending the term of Kerala Bar Council which had been passed by a process of circulation and the validity of which had been challenged, was one not fully in compliance with the requirement of the rules and as such not a power exercised in the manner provided for by law and the extension was held to be bad. Learned Counsel, placing reliance on this decision contended that when there is no enabling provision for issue of a supplemental or amended Notification in the conduct of elections, particularly for notifying the calendar of events altering the same by a subsequent notification, is not an act either envisaged or permitted in law and as such the issue of the notification is bad. Learned Counsel for the petitioner has also contended that the petitioner having challenged the validity of the notification issued by a statutory functionary, the petitioner was not under any obligation to implead the successful candidates in the election and impleadment of the Institute, by its Council was a sufficient compliance for impleading necessary parties before the Tribunal. In this regard, learned Counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of Michael B. Fernandes v. CK. Jaffer Sharief ILR 2002 Kar. 4489. Learned Counsel has also submitted that the petitioner having challenged the action on the part of the respondent Institute and its Council in the context of the exercise of their statutory powers, the question of the petitioner having not raised such objections before the Returning Officer during the time of receipt of postal ballots as per the subsequent notification or even the counting or declaration of results subsequently, is of no consequence as the challenge is primarily in the context of the exercise of statutory powers by the respondent Institute through its Council. In this regard, learned Counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of K. Ramadas Shenoy v. Chief Officers, Town Municipal Council, Udipi and urges that the petitioner cannot be denied relief on the ground that he has acquiesced to such a position before the Returning Officer.
13. Statement of objections have been filed on behalf of the second respondent Institute. Various contentions are urged for dismissal of the writ petition. It is asserted that the writ petition is not tenable; that in the first instance, the petition is not maintainable for non-joinder of necessary and proper parties namely the members who had been declared to be elected in the elections having not been impleaded as respondents either to the election petition or in the present writ petition; that the order passed by the Tribunal is fully justified, the Tribunal having examined the merits of the dispute, particularly the background in which the Council had issued subsequent Notification dated 19-12-2000 and having found as a matter of fact it had been issued with utmost good faith and for justifiable and bona fide reason having found that there is no occasion to interfere in the election petition is a fortiori so in this writ petition and this Court, in the exercise of writ jurisdiction, should not entertain a petition of this nature. It is also urged that elections have been conducted in accordance with the statutory provisions and therefore there was no occasion for the Tribunal to interfere with the declaration of results and for holding the election as one bad in law.
14. Sri Udaya Holla, learned counsel for the respondent Institute has firstly contended that the petition should be dismissed for non-joinder of parties at the threshold. It is the submission of the learned counsel that the candidates who had been declared as elected are necessary parties both to the election petition and to this writ petition; that the relief, if granted to the petitioner, will directly affect the elected candidates; that such candidates having not been impleaded as respondents to the election petition or to the writ petition, no relief can be given to the petitioner to their detriment and as such the petition deserves to be dismissed. Learned counsel in this regard has placed reliance on a Full Bench decision of the Nagpur High Court in the case of Kanglu Baula Kotwal v. Chief Executive Officer, Janpad Sabha, Durg AIR 1955 Nag. 49. Sri Holla has submitted that the petitioner is not entitled for relief on the grounds of estoppel and acquiescence also, the petitioner not having raised any objections before the Returning Officer; that he was very much present before the Returning Officer at the time of counting of votes and did not raise or indicate his protest and as such he is now estopped from contending that the said act is bad in law for the purpose of declaring the elections as invalid. Learned counsel has drawn my attention to the provisions of Regulation 59 and has submitted that the issue of the Notification dated 19-12-2000 was well within the powers of the Council, particularly is one as envisaged under Regulation 59(g) of the Regulations. He submitted that Regulation 59(g), which is in the nature of a residuary power, also confers the power on the Council to alter and amend a notification which had been issued earlier fixing the calendar of events.
15. Sri Udaya Holla, learned counsel for the second respondent, countering the argument of the counsel for petitioner to the effect that the notification dated 19-12-2000 is one not in compliance with the requirement of the time gap of ninety days between the date of issue of the Notification dated 19-12-2000 and the expiry of the term of the existing Council, has submitted that the subsequent notification could be read as a notification amending the notification dated 1-9-2000 and as only some of the dates are altered, it should be taken as an amendment which had been incorporated in the original notification and if it is so looked at, it is as though that the altered dates had been published in the original notification dated 1 -9-2000 itself, in which event the requirement of ninety days time gap is also met. Learned counsel for the second respondent has placed reliance on the decision of the Supreme Court in the case of Mohd. Yunus Saleem v. Shivkumar Shastri . Sri Udaya Holla has also relied upon a single bench decision of this Court in the case of M.L. Shankamnarayana Rao v. Corporation of the City of Bangalore [1973] (2) MYS.L.J. 486 to support his submission that an amendment effected subsequently becomes operative from the date of presentation of the original petition or as in this case, from the date of issue of the earlier notification.
16. Sri Holla, learned counsel for second respondent, has also contended that the power to alter or amend is also traceable to the provisions of section 21 of the General Clauses Act and even on such principle, the Council is empowered to issue the notification dated 19-12-2000. Learned counsel submits that this is an argument in the alternative to the assertion that Regulation 59(g) of the Regulations itself should be read as an enabling power for such purpose,
17. I have perused the impugned order passed by the Tribunal, the pleadings of the parties in this writ petition and have heard the learned counsel for petitioner and the second respondent.
18. The points that arise for consideration in the light of the pleadings and the contentions urged on behalf of the parties are :--
(1) As to whether the Tribunal was justified in rejecting the election petition on the premise that the re-fixation of the dates for the ultimatum to receive postal ballots, the date of counting and the date of announcement of results by the notification dated 19-12-2000 is an accidental irregularity saved under the provisions of Regulation 87T of the Regulations?
(2) As to whether the Tribunal should have dismissed the election petition at the threshold for non-joinder of necessary parties?
(3) If the Tribunal could not have dismissed the petition for these two reasons, as to whether the Tribunal should have allowed the petition on the premise that the action on the part of the second respondent Institute in issuing the Notification dated 19-12-2000 is vitiated due to non-compliance of the requirements envisaged under Regulation 59 and also for contravening Regulations 59 and 87(f) of the Regulations?
19. I will first take up the preliminary objection raised on behalf of the second respondent Institute that the election petition as well as this writ petition are liable to be dismissed only on the ground that the petitioner had not impleaded necessary parties to the proceedings. The contention urged on behalf of the second respondent in this regard is two-fold. It is firstly urged that in the election petition the relief ultimately sought for is to declare the election as null and void which necessarily affects the candidates in whose favour the results have been declared and who have been declared to be elected and without impleading such successful candidates, the election petition was not tenable for non impleadment of necessary parties. It is also contended in this regard that even in the absence of the Regulations having indicated that such and such a person should have been impleaded as a party to the election petition on general principles and even on the principles of compliance with natural justice, which is that affected persons should always be heard before a decision adverse to them is taken to the effect that the elections conducted are void and the results are not sustainable, inasmuch as the successful candidates are necessary parties. The second limb of the argument is that even in a petition under article 227 of the Constitution of India, the relief sought for is again which can be said to be one affecting the interest of successful candidates, such person should have been made respondents in the writ petition and they having not been impleaded so, the writ petition is not tenable. It is also urged in this regard that the conduct of the petitioner is one that disentitles a relief under article 227 of the Constitution of India and the principles of estoppel, acquiescence and waiver operates against the petitioner and as such objections or disputes had not been raised before the Returning Officer. Learned counsel has relied upon the decisions referred to above in support of this submission.
20. This argument is countered by the learned counsel for the petitioner by drawing attention to the relevant provisions of the Regulations and particularly the mode of presentation of an election petition under Section 10(2) of the Act. Learned counsel has pointed out that the election petition itself is presented before the Council who refers the same to the Tribunal. It is submitted in this regard that the Council is the 'Council' as constituted at present and on the date of presentation of the election petition, the present Council comprising of the successful candidates were in office; that the election petition was presented on 2-2-2001 whereas the Council comprising of the elected members had been constituted as on 14-1-2001 itself and as such the very presentation of the petition before the Council constituted notice to all the members of the Council and as there is no requirement under the Regulations to implead every member, it cannot be said that either the election petition or the writ petition suffers from the vice of non-joinder of parties. Learned counsel for the petitioner has also submitted that for this very reason, there is no violation of the principles of natural justice, inasmuch as the affected parties are very much on notice the moment the petition is presented before the Council.
21. The relief sought for by the petitioner was in the context of irregularities committed by the Council in the matter of issue of a notification in the conduct of the elections and in the context of the election process. The relief sought for was not directed or oriented against any particular member or on the allegation that any particular member had indulged in any activities which could disentitle him for a declaration in his favour. When the relief is sought for against a particular person, then it becomes necessary to implead such a person and when a person is definitely a necessary party to the proceedings, non-impleadment of such person attracts the vice of non-joinder of necessary parties. I am of the view that in the instant case, neither the election petition nor the present writ petition can be said to be suffering from such a vice. The election petition being presented through the Council and the Council itself being the body which refers the election petition to the Tribunal, constitutes sufficient notice to all the members in the Council who are the persons who have been declared as elected in the elections under challenge and as such it cannot also be said that there is any violation of the principles of natural justice. To this extent, I am of the view that the Tribunal is justified in not dismissing the petition on the ground of non-joinder of parties. Though the Tribunal has not discussed this aspect of the matter, the result is the same.
22. With regard to the point as to whether the Tribunal was justified in dismissing the election petition on the ground as to whether the action on the part of the respondent in issuing the impugned notification dated 19-12-2000 as saved under the provisions of Regulation 87T of the Regulations,
23. I am of the view that the Tribunal is in error in invoking the provisions of Regulation 87T of the Regulations for dismissing the election petition. I say so for the reason that the Tribunal has proceeded on a misconception that the action on the part of the respondent in issuing the impugned notification dated 19-12-2000 was an accidental irregularity or an accidental omission. The provisions of Regulation 87T of the Regulations are made in the context of an accidental irregularity or accidental omission on the part of the Institute in the conduct of the election process which means that it was not an intended action; that it was by oversight that the consequences are the effect of the action on the part of the respondent Institute, was not known or without being aware of the same that the action had been taken. The illustrations shows that an accidental omission or delay in sending voting papers to a voter or an accidental non-receipt or delay in receipt of such voting paper. The delay in receipt of postal votes attributed to the unforeseen postal strike, is taken as the reason for attracting the provisions of Regulation 87T of the Regulations and as a justification for issuing the notification dated 19-12-2000. It may be true that the postal strike was an unforeseen event neither within the knowledge nor in the control of the Institute. If the process of election should have been continued even without the receipt of all postal votes and the results declared even on counting only such of those postal votes that had been received by the Institute as per the calendar of events issued before and within the last date that had been fixed, the non-inclusion of such votes which are received after the originally notified last date for receipt of postal ballots due to the postal strike may have constituted an accidental omission that is mentioned in this Regulation. The act that is challenged was the conscious and intended action on the part of the Institute in issuing the notification dated 19-12-2000 fixing different dates for the three events mentioned earlier. The reason or the cause for issuing the notification might have been the unforeseen postal strike, but the act of issuing the notification dated 19-12-2000 is not an accidental irregularity or an accidental omission mentioned in Regulation 87T of the Regulations. The Institute was aware of the consequence of the postal strike. The Institute in fact acted on the representation of some of the members or candidates who were involved in the elections and consciously re-fixed the date. By no stretch of imagination this act can be characterised as an accidental irregularity. The Tribunal is clearly in error in relying upon Regulation 87T to dismiss the election petition.
24. That takes us to the last point as to whether the Tribunal should have passed any other order other than dismissing the petition or as to whether the order of dismissal can still be sustained. It is a well accepted legal principle that a successful party may support the order or judgment in his favour even by calling in aid such reasons and grounds not mentioned in the order itself. Even otherwise, the dismissal of the election petition by the Tribunal could have been sustained by providing cogent and acceptable reasons and if it could have been shown that there was no illegality or contravention of the provisions of the Act or the Regulations committed by the Institute in issuing the impugned Notification, the result will be the same. It is this aspect which is now required to be examined.
25. The challenge to the election process, the declaration of results is in respect to the Notification dated 19-12-2000. The challenge proceeds on the premise that the Institute had no authority to issue a Notification of this nature; that it was beyond its jurisdiction; that it is in contravention of the requirement of the ninety days' time gap that was required between the date of issue of the notification and the date of expiry of the term of the existing Council; that it also contravenes the provisions of Section 87(F) of the Regulations. The question is whether it is so. It is no doubt true that Regulation 59 of the Regulations stipulate the requirement of ninety days' time being the interval between the date of the notification and the date of expiry of the term of the existing Council. What it means is that a notification fixing the different stages of election should have been issued ninety days prior to the expiry of the term of the Council. When the notification was so issued on 1-9-2000, there was compliance with this requirement. The argument is that it is the subsequent notification dated 19-12-2000 which has violated this requirement and also on the premise that for issue of such notification dated 1-9-12-2000, the Council had no authority and even if so, that it could riot have issued the notification altering the dates only for some of the stages of the election as has been done by the Notification at Annexure-F dated 19-12-2000 and not by issuing a fresh notification of all stages. Learned Counsel for the petitioner has made an alternative submission that even conceding for argument's sake that the respondent Institute had such power to re-fix the dates for the elections, it cannot be done in a piece-meal manner and as it amounts to not exercising a power in the manner provided by the statute, but in a different manner. It is in this regard the learned Counsel has relied upon the principle that a power vested in an authority should be exercised only in that manner and not in any other manner and exercising the power not fully in accordance with the provisions amounts to an improper exercise of the power. In support of the submission, reliance was placed on the decision of the Supreme Court (supra). In so far as this argument is concerned, the scope and meaning of Clause (g) of Regulation 59 was referred to by both learned Counsel and merits examination.
26. Regulation 59(g) of the Regulations is an enabling power in favour of the Council to notify any other date or dates for the conduct of election other than the stages mentioned under Clauses (a), (b), (c), (d), (e) and (f). While learned Counsel for petitioner has contended that Clause (g) should be understood by applying the rule of ejusdem generis and as a power to notify dates for such other stages or events not expressly enumerated under clauses (d) to (f), but for which stage a date is required to be notified and which are analogous and within the process of the conduct of election i.e., any other intermediate dates from the starting point to the declaration of the results. It is also contended for the petitioner that this clause does not empower the Council to take any other action. Per contra, Sri Udaya Holla, learned Counsel for the second respondent has submitted that it should be understood as a clause empowering or enabling the council both for issuing a fresh calendar of events and even for fixing different dates within a notified date for the process of election. Sri Holla has submitted that the power to issue notification as at Annexure-'F' fixing different dates in respect of only three of the stages which had already been notified earlier, is traceable to Regulation 59(g) of the Regulations. Learned Counsel has also drawn sustenance from the provisions of Section 21 of the General Clauses Act to say that when once the Council has the power to notify the calendar of events and has also the power to alter, modify and amend the notification and also has the power to issue a fresh calendar of events if for any reason the notified calendar of events cannot be adhered to, then it must be held to have the power to alter or amend the dates for any or all the stages, as is enabled by the provisions of Section 21 of the General Clauses Act.
27. On a reading of the provisions of Clause (g) of Regulation 59 of the Regulations, it can only be understood as an enabling power to fix dates in respect of stages of events not enumerated under clauses (a) to (f) and not as a clause enabling or empowering the Council to alter the dates already fixed. The rule of ejusdem generis is attracted. It can also be understood as one which mandates that the notification notifying the calendar of events should compulsorily include the dates fixed for the stages at (d), (b), (c), (d), (e) and (f) and optionally the dates for any other stages that may be required to be notified or found to be convenient to be notified by the Council.
28. However, on the application of the principles envisaged under Section 21 of the General Clauses Act, the Council having the power to notify the calendar of events also should be held to have the power to alter, amend or reissue the calendar of events. The power, though not traceable necessarily to Clause (g) of Regulation 59 of the Regulations, can be traced to Section 21 of the General Clauses Act. Unless such a power is conceded in favour of the Council, it may lead to an incongruous situation where if for any reason the election process cannot be conducted in accordance with the notified dates, no elections can be held at all thereafter. That is definitely not the object of Regulation 59 of the Regulations nor of the provisions of Section 10 of the Act.
29. The next aspect is, if the Council can be said to have the power to issue an altered calendar of events whether it can do so as in the manner it has done under Annexure-F or whether it should be by issue of fresh calendar of events for all stages. The argument that the Council cannot do so in respect of only some of the stages, proceeds on the premise that by doing so, the requirement of Regulation 59 of the Regulations itself is being violated inasmuch as in respect of the altered dates for the three events the notification having been issued on 19-12-2000, there is no time gap of ninety days between the date of issue of notification and the date of expiry of the term of the Council, which undisputedly has come to an end by 14-1-2001. Obviously there is no time gap of ninety days.
30. When once it is conceded that the Council has the power to amend, alter, modify or even reissue the entire notification, it matters little as to whether it is in respect of only some of the dates or in respect of some of the stages, by reissuing a notification re-notifying the earlier calendar of events. But the question is as to whether such fixation contravenes any requirements of Regulation 59 of the Regulations. The reply on behalf of the second respondent to say that the notification dated 19-12-2000 is in compliance with the Regulations and not in contravention of the requirement, proceeds on the premise that the notification dated 19-12-2000 is in the nature of an amendment to the original notification, that the accepted principle in the matter of amendment to an original notification is that the amended provision gets incorporated into the original order or text of the order and should be read as though it was there from the date of the original order or notification. It is in support of this argument Sri Udaya Holla, learned Counsel for second respondent has placed reliance on the decision of the Supreme Court and a Single Bench Decision of our High Court referred to earlier.
31. In the case of Mohd. Yunus (supra) decided by the Supreme Court a notification fixing the date of poll as envisaged under Section 30 of the Act was altered subsequently and the notification so altering the date had not been issued in Form No. 1 as is required under Rule 3 of the Conduct of Election Rules read with Section 31 of the Representation of People Act, 1951. The validity of such a notification was challenged on the ground that it was not a valid notification in the eye of law; that it had not been issued in Form No. 1 as required under Rule 3 of the Rules and the consequence as envisaged under the Notification does not follow. This argument was repelled by the Supreme Court by holding that a fresh notification of the altered dates in Form No. 1 under Rule 3 was not necessary because the alteration being in the nature of a modification or an amendment to the original notification which was in Form No. 1, gets incorporated into the original notification which was in the required form and the power for issuing the subsequent notification altering the date being attributable to Section 30 of the Representation of the People Act (1951) read with Section 21 of the General Clauses Act, it should be held that the requirement of the notification being in Form No. 1 is made good and the Notification did not suffer from any vice of irregularity or illegality.
32. In the instant case, what is urged is that the power to issue the subsequent notification dated 19-12-2000 which is very much in the nature of an amendment or alteration to the earlier notification dated 1 -9-2000, is referable to Clause 59(g) of the Regulations read with Section 21 of the General Clauses Act and the alteration of the dates being in the nature of an amendment, should be deemed to be incorporated into the original notification dated 1-9-2000 in which event it can be said that the requirement of ninety days time gap between the date of issue of notification and the date of expiry of the term of the Counsel is also complied
33. The requirement of ninety days time gap is achieved by a fiction of law that it is deemed that these dates are notified in the original notification dated 1-9-2000 itself though not actually so and as such the violation is avoided.
34. A fiction being employed and the apparent is made to look real, is a device in law to save a situation. In the instant case, elections have been held, parties have acted upon, on the notified date the results have been declared and the elected members have functioned for years together and the learned Counsel for parties in fact submit that three years' term is on the verge of completion. The situation is tailor made for applying the provisions of not only Section 21 of the General Clauses Act but also to hold that the altered dates necessarily gets incorporated into the original notification dated 1-9-2000. If so, there is no violation of the requirement of Regulation 59 of the Regulations.
35. When once it is held that there is no violation of any of the statutory provisions and the challenge to the election process was only on such premise, there was no occasion for the Tribunal to have allowed the petition and though the Tribunal has achieved the right result but for wrong reasons, the same is not one liable for interference by this Court as the order of dismissing the petition was a just and proper order. As I find that the order of the Tribunal could have been sustained by reasons other than the once that Tribunal itself had given, there is no scope for interference in this petition.
36. Accordingly this writ petition is dismissed. No order as to costs.