Punjab-Haryana High Court
Karnail Singh vs State Of Punjab And Others on 4 December, 2013
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal, Jaspal Singh
LPA No.1518 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No.1518 of 2013 (O&M)
Date of decision: December 04, 2013
Karnail Singh
Appellant
Versus
State of Punjab and others
Respondents
CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MR. JUSTICE JASPAL SINGH
Present: Mr. Ashwani Prashar, Advocate for the appellant.
Mr. N.K.Verma, Sr. DAG, Punjab.
Mr. M.S.Kang, Advocate for respondent No.4.
Mr. Lalit Rishi, Advocate for
Mr. D.S.Patwalia, Advocate for respondent No.5.
Ajay Kumar Mittal,J.
1. The appellant has filed the present Letters Patent Appeal against the judgment dated 16.7.2013 passed by learned Single Judge whereby the writ petition filed by him has been dismissed.
2. A few facts relevant for the decision of the controversy involved, as available on record, may be noticed. The Ropar District Cooperative Milk Producers Union Limited, Milk Plant, Mohali, the Barwa Cooperative Milk Producers Society Limited, Barwa, Tehsil Anandpur Sahib, District Ropar and the Bhatton Cooperative Milk Producers Society Limited, Bhatton are the cooperative societies registered under the provisions of Punjab Cooperative Societies Act, Singh Gurbax 2014.02.03 16:20 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.1518 of 2013 (O&M) 2 1961 (in short, "the Act"). Both the Barwa and Bhatton societies are the members of the Union and fall in Zone No.11 of the Union. Elections to the Milk Union were held in the month of May 2010 in which the appellant being committee member of the Barwa society and duly authorised by it participated. Respondent No.4 being representative of the Bhatton society also participated and contested the election against the appellant. Both the appellant and respondent No.4 secured 29 votes each and result was declared by the Returning Officer by way of toss of a coin in which the appellant was declared elected. Feeling aggrieved, respondent No.4 filed election petition under sections 55/56 of the Act read with Rule 12(2) of Appendix 'C' Punjab Cooperative societies Rules, 1963 (in short, "the Rules") challenging the manner in which the election of the appellant was held. The said petition was dismissed on 31.8.2010 by respondent No.3. Instead of availing the remedy of appeal, respondent No.4 filed CWP No.17358 of 2010 in this Court which was allowed on 1.12.2010 and the matter was remanded back to respondent No.3 to decide it afresh. After remand, respondent No.3 allowed the election petition filed by respondent No.4 on 27.2.2012 on the ground that the result of the election was declared in violation of Rule 11(1) of the rules. The appellant challenged the order passed by respondent No.3 by way of appeal under section 68 of the Act before the Registrar Cooperative Societies, Punjab which was allowed on 31.5.2012. Aggrieved by the order, respondent No.4 preferred a revision petition before respondent No.1 which was allowed vide order dated 22.10.2012 in view of decision of this court in Smt.Karnail Kaur v. Singh Gurbax 2014.02.03 16:20 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.1518 of 2013 (O&M) 3 Sm.Balbir Kaur, 2009 (1) PLR 476. Dissatisfied with the order, the appellant filed writ petition in this court which was dismissed vide order impugned herein. Hence the present appeal by the appellant.
3. We have heard learned counsel for the parties and perused the record.
4. Learned counsel for the appellant submitted that draw of lots would embrace spinning of coin within it. To support, he relied upon judgments of Allahabad High Court in Smt.Shanti Devi v. Additional District and Sessions Judge, Karvi and others, 1999 AIHC 566, Jammu and Kashmir High Court in Ghulam Rasool v. State and others, AIR 2012 J&K 57 and Single Bench of this Court in Bharpai v. Manbhari and another, 1975 PLJ 342. He argued that the view taken by learned Single Judge of this Court in Smt.Karnail Kaur's case (supra), to the effect that in throwing a coin in the air for the purpose of tossing up, there is a possibility of drawer to determine the result, is not correct. The conclusion of the learned Single Judge based on the said observations is not sustainable.
5. Learned counsel for the respondents drew support from Single Bench judgments of this Court in Harbans Singh v. State of Punjab, 1984 RRR 561 and Om Parkash Lamba v. State of Punjab, 1962 CurlJ 152. Support was sought to be drawn from Rule 11(1) of the Rules, which reads thus:-
"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 Singh Gurbax by the Returning Officer or Presiding Officer as the case may 2014.02.03 16:20 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.1518 of 2013 (O&M) 4 be."
6. The issue that arises for consideration in this appeal is whether the spinning of coin can be treated as one of the modes for draw of lots. The answer to the question is in the affirmative.
7. In order to adjudicate the issue, one would have to examine the meaning of the word 'draw of lots'. The word 'lot' has been defined in the Advanced Law Lexicon, inter alia, to mean "to be a contrivance to determine a question by chance, or without the action of man's choice or will". 'Toss' on the other hand has been defined in the New Lexicon Webster's Dictionary to mean as under:
"to flick a coin into the air and let it fall heads or tails as a method of letting fate decide whether the course of action previously agreed on if the coin falls heads is to be put into operation or that agreed on if it falls tails".
8. The procedure of tossing up harmonises with the operation of the drawing of lots as both involve an element of chance. It is thus clear that there is no noticeable difference between the terms 'lot' and 'toss'. Both the terms used in the context connote determination of something by chance. Therefore, the spinning of coin would be embedded in the draw of lots as one of the modes for declaring the result.
9. Examining the pronouncements on the subject, it may be noticed that the Allahabad High Court in Smt. Shanti Devi's case (supra) had observed that there is no distinction between 'draw of lot' and 'toss' as under:-
"5. Equality in votes admittedly existed between the petitioner and the third respondent and according to Rule Singh Gurbax 54 of the Rules aforestated, the Returning Officer was 2014.02.03 16:20 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.1518 of 2013 (O&M) 5 enjoined in law to decide between the two candidates by lot and proceed as if the candidate on whom the lot falls, had an additional vote as visualised by Rule 54 but the question is whether non compliance with Rule 54 vitiated the declaration of the result of the election. The word 'lot' has been defined in the Law Lexicon, inter alia, to mean 'anything used in determining a question by chance; or without men's choice or will; a resort to chance for the determination of question or for arriving at a result'. Toss on the other hand has been defined in the New Lexicon Webster's Dictionary to mean as under:
'to flip a coin into the air and let it' fall heads or tails as a method of letting fate decide whether the course of action previously agreed on if the coin falls heads is to be put into operation or that agreed on if it falls tails, to agree with someone to let a matter be settled in this way...'
6. It is thus deducible that there is no noticeable difference between the term 'lot' and 'toss'. Both the terms used in the context connote determination of something by chance. Rule 54 of the rules, indisputably, envisages the result of election in the event of equality of votes, to be decided by draw of lot but upon regard being had to the fact that equality of votes in the present case was between two candidates only, it cannot be said that declaration of result by toss materially affected the result of the election so as to warrant interference under Section 12C (1) (b) (ii) of the Act. Declaration by toss would have, no doubt, materially affected the result of the election. If there had been an equality of votes between three or more candidates but in the present case the equality of votes was between two candidates only and, therefore, decision taken by the Returning Officer by toss would not materially affect the result of election which was not liable to be called in question except on Singh Gurbax 2014.02.03 16:20 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.1518 of 2013 (O&M) 6 the ground, inter alia, that the result of the election has been materially affected by gross failure to comply with the provisions of the Act and the rules made thereunder.
Neither the prescribed authority nor the revisional court addressed itself to the question whether the result has been materially affected merely because the Returning Officer decided the fate of the petitioner and the third respondent by flipping a coin on the application moved by the third respondent herself. True, 'estoppel' cannot prevent or hinder the performance of a statutory duty or exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public' and 'it is impossible in law for a person to allege any kind of principle which precludes him from alleging the invalidity of that which the statute has, on grounds of general public policy enacted shall be invalid' but regard being had to the element of uncertainty equally involved, both in 'toss' and 'lot' and the language employed in Section 12C of the Act, I am of the considered view that the declaration of the result of election by 'toss' in the event of equality of votes between two candidates, would by itself not invalidate the declaration in that the result cannot be said to have been materially affected merely because it was declared by toss. The third respondent was herself a privy to the illegality if at all committed by the Returning Officer in not proceeding in accordance with the provisions of Rule 54 of the Rules and it is still uncertain if she will win the election provided the result is declared by drawing lot as prescribed by Rule 54 of the Rules. She was, therefore, not entitled to get the election of the petitioner set aside under Section 12C of the Act."
10. Similar view has been expressed by Jammu and Kashmir High Court in Ghulam Rasool's case (supra) in the following terms:- Singh Gurbax 2014.02.03 16:20 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.1518 of 2013 (O&M) 7
"8. The only question which survives for consideration is as to whether on the basis of tossing of coin fate of the candidates could be sealed? Answer is to be in affirmative because sub rule (2) of Rule 47 of the J&K Panchayat Raj Rules clearly provides the mode of selection when there are equal number of votes in favour of the candidates. The words "draw of lot" as employed in sub rule (2) of Rule 47 of the J&K Panchayat Raj Rules, are to be liberally construed. There is no hard and fast rule for adopting a particular method vis-a-vis "draw of lot". "Draw of lot" would take into its sweep tossing of coin as well."
11. Learned Single Judge of this Court delving into identical issue in Bharpai's case (supra) had opined that spinning of coin would be included in the draw of lots. It was held as under:-
"These considerations apart, the proviso to sub rule (12) of rule 5 of the rules reads as under:-
'Provided that if two or more candidates have obtained the same number of votes, the Presiding Officer shall draw a lot of such candidates in the presence of Panches and the candidates whose name is first drawn shall be declared by the Presiding Officer to have been coopted as woman Panch.' The rule provides that the Presiding Officer shall draw a lot of such candidates in the presence of the Panches. One way of drawing a lot is to write names of the parties on pieces of paper, intermingle the pieces, and then to pick one out of them. Whichever candidate's name appears on that piece of paper, would be deemed to have been elected. The other method is to spin a coin, which has been done in the instant case. The actual meaning of drawing of a lot is to make a decision by adopting a method in which the element of chance is involved. The Singh Gurbax word 'lot' has been defined in the Shorter Oxford English 2014.02.03 16:20 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.1518 of 2013 (O&M) 8 Dictionary, third Edition, as follows:-
'.......1.An object (usually a piece of wood) used in an ancient method of selection or decision by chance; a number of these being placed in a receptacle and shaken or drawn out. Nearly always in phrases to cast (Archaic), draw (send throw etc.) lots (or lot). b. In abstract sense: The use of this, or any equivalent process, to obtain a decision.....'. This obviously implies that when a coin is spun, it cannot be said that a decision has not been arrived at by drawing a lot. In my considered opinion, the prescribed authority has distorted the ordinary meaning of the word 'lot' in holding the election of the petitioner to be void. Furthermore, the sponsors of both the candidates were present before the Presiding Officer and on their joint request the convener of the meeting agreed to spin the coin. It is a matter of common knowledge that these elections are conducted on party basis. If the supporters of respondent No.1 took a chance and requested the convener of the meeting to spin a coin, it should not give a handle to the respondent to challenge the decision of the convener of the meeting by filing an election petition.
5. For the reasons mentioned above, I hold that the spinning of a coin is included in the phrase 'drawing by lots', the petitioner had been validly coopted as a Panch of the Gram Panchayat and the decision of the prescribed authority holding the election of the petitioner to be void is contrary to law. I further hold that the petitioner will continue to be validly coopted Panch of the Gram Panchayat Kitlana. The petition is allowed in these terms.
The petitioner is also entitled to her costs which are assessed at `200/-."
12. In all fairness, we now advert to judgments relied upon by learned counsel for the respondents. In Harbans Singh's case (supra), the issue before the Court was relating to elections under the Punjab Singh Gurbax 2014.02.03 16:20 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.1518 of 2013 (O&M) 9 Gram Panchayat Election Rules, 1960 where there was a tie between the parties. While interpreting Rule 33 of the said rules, it was held that lot drawn would tantamount to the securing of one additional vote in favour of the candidate in whose favour the lot is drawn which was to be done 'forthwith'. The issue there being different, no advantage can be derived by the respondents therefrom.
13. The learned Single Judge of this Court in Smt.Karnail Kaur and Om Parkash Lamba's cases (supra) had held that spinning of coin is different from draw of lots primarily on the assumption that since spinning of coin involves throwing a coin in the air for the purpose of tossing up and there is possibility of the drawer to determine the result. We are unable to subscribe to the aforesaid opinion. Consequently, the contrary view taken by learned Single Judge in Smt.Karnail Kaur and Om Parkash Lamba's cases (supra) is hereby overruled. In view of the above, the judgment of learned Single Judge dated 16.7.2013 relying upon aforesaid pronouncements is, thus, legally unsustainable. The appeal is allowed and as a consequence, the writ petition filed by the appellant also stands allowed. The impugned order is set aside.
(Ajay Kumar Mittal)
Judge
December 04, 2013 (Jaspal Singh)
'gs' Judge
Singh Gurbax
2014.02.03 16:20
I attest to the accuracy and
integrity of this document
High Court Chandigarh