Bombay High Court
Tarvindarsingh Mahendrasingh Dhillon vs State Of Maharashtra And Ors. on 27 August, 1999
Equivalent citations: AIR2000BOM223, 2000(1)MHLJ264, AIR 2000 BOMBAY 223, (2000) 1 MAH LJ 264, (2000) 2 MAHLR 70, (2000) 1 ALLMR 155 (BOM), (2001) 5 BOM CR 139
Author: S.B. Mhase
Bench: S.B. Mhase
JUDGMENT Barde, J.
1. Writ Petition No. 2162 of 1999 is filed for challenging the election of Mayor and Deputy Mayor of Aurangabad Municipal Corporation (hereinafter referred to as "the Corporation") held on 20-4-1999; while the other two writ petitions are filed for challenging the election of Mayor and Deputy Mayor of the Corporation separately by the petitioner-Shri Oberoi, one of the Corporators. As these three writ petitions raise common issues, those are being disposed of by this common judgment.
2. The grounds raised for challenging the election of Mayor and Deputy Mayor-respondents Nos. 4 and 5 respectively in Writ Petition No. 2162 of 1999 -- are as follows:
3. The petitioner-Shri Dhillon had contested the election of Mayor and Deputy Mayor both on 20-4-1999 against respondent Nos. 4 and 5 respectively; and he lost both the elections.
4. The contention of the petitioner-Shri Dhillon is that, at the time of voting, 16 voters were given assistance to vote for the election of the Mayor; and 8 voters were given assistance for the election of Deputy Mayor. No reason whatsoever was there to give assistance to those voters. Respondent No. 6 Smt. Gunjale -- was then the Mayor of the Corporation and she was presiding over the meeting. She gave the assistance to those voters for the purpose of voting even though the members in opposition were objecting that such assistance be not given.
5. Respondents Nos. 4 to 6 are all active workers of Shiv Sena Party; and they were elected as Corporators on Shiv Sena ticket;
while the petitioner contested the election of Mayor and Deputy Mayor on the support of "Aghadi", which was in the opposition group in the Corporation. The petitioner-Shri Dhillon -- was associate member of Shiv Sena and many members of Shiv Sena Party, who were the Corporators, were in his favour and they desired and intended to vote in favour of the petitioner-Shri Dhillon. So, Shri Dhillon was confident of getting elected to the post of Mayor and/or Deputy Mayor on the support of the Corporators, who are members of "Aghadi," and of the Corporators of Shiv Sena Party, who were his well wishers and supporters.
6. The leaders of Shiv Sena party came to know that there was possibility that some of the Corporators belonging to Shiv Sena party may vote against the official candidates of Shiv Sena party for the purpose of post of Mayor and Deputy Mayor. To stop them from voting in favour of the petitioner, they adopted a novel method of giving assistance to those members of Shiv Sena party, who were likely to cross-vote. By adopting this method, these well wishers of the petitioner-Shri Dhillon -- from Shiv Sena party were forced to vote in favour of respondents Nos. 4 and 5. They had to vote under duress, because the assistant provided for the purpose of voting was knowing to whom they had voted. So, they could not vote as per their free will and, thus, the secrecy of voting was violated and the principle of secret ballot was also violated.
7. The petitioners have contended that the Corporation has framed Rules with respect to proceedings of the meetings of the Corporation. Those are the conduct of Business Rules, in addition to the Rules provided under Chapter II of the Schedule of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the Act"). Rule 45 makes a provision regarding how the voting by secret ballot be carried out. By giving assistance to the voter at the time of casting of the votes, the provisions of Rule 45 were violated by the then Presiding Officer of the meeting -- respondent No. 6-Mayor.
8. It is contended that none of the voters, to whom assistance was given by the Presiding Officer -- respondent No. 6 -- for the purpose of voting, had demanded for assistance. In support of this contention, the petitioner-Shri Dhillon -- has filed on record the xerox copy of the minutes of the meeting held on 20-4-1999 for the purpose of election of Mayor and Deputy Mayor; and in the minutes, it is specifically stated to whom the assistance was given for the purpose of casting vote at the time of election of Mayor and Deputy Mayor. The details are quoted in the petition by the petitioner.
9. By effecting amendment in the petition, the petitioner-Shri Dhillon -- has further contended that 16 Corporators to whom the assistance was given, and other Corporators of Shiv Sena party, were threatened that if they were not to vote in favour of respondents Nos. 4 and 5, they will have to face dire consequences. Out of the 16 Corporators, 14 were belonging to Shiv Sena Party. They were directed to demand assistance at the time of voting in the House, so that they would not be able to vote in favour of the petitioner-Shri Dhillon. The Presiding Officer, the Mayor, was also directed to give assistance to these members at the time of voting. Thus, the members of Shiv Sena Party, who were to cast vote in favour of the petitioner-Shri Dhillon -- had to cast vote in the presence of the assistants and they could not cast vote in favour of the petitioner-Shri Dhillon. Thus, respondents Nos. 4 and 5 were got elected to the post of Mayor and Deputy Mayor respectively.
10. Even when several objections were raised at the time of voting for granting assistance to the Corporators, the Presiding Officer adopted high-handed methods and did not pay any heed to the objections of the opposition group. Therefore, the members of the opposition group boycotted the election of Deputy Mayor. It is, therefore, contended that the election was not held in fair and proper manner. Under the duress, the 16 Corporators cast their votes in favour of respondent Nos. 4 and 5. So, the election of respondents Nos. 4 and 5 is vitiated.
11. The petitioners, therefore, have prayed that election of respondent No. 4 to the post of Mayor; and the election of respondent No. 5 to the post of Deputy Mayor, be declared illegal, invalid and be set aside; and fresh elections for the post of Mayor and Deputy Mayor be directed.
12. The State of Maharashtra-respondent No. 1 -- being formal party, has not contested the proceedings.
13. On behalf of respondent No. 2-Corporation, the Commissioner has filed a formal affidavit. However, it is contended in the affidavit that the copy of the minutes, which is filed on record by the petitioner-Shri Dhillon is not the authenticated copy of the minutes of the meeting held on 20-4-1999, because it is not the certified true copy. The certified true copy of the minutes of the meeting dated 20-4-1999 is filed on record along with this affidavit.
14. From this, it is noticed that there were in all 82 Corporators. Out of them, 50 voted in favour of Shri Sonawane-respondent No. 5 -- at the time of election of the post of Mayor; 31 voted in favour of Shri Dhillon -- the petitioner--; and one vote was invalidated. So, it was declared that Shri Sonawane got elected to the post of Mayor. He is elected by margin of 19 votes.
15. With respect to the election of Deputy Mayor, 46 voted in favour of respondent No. 5-Shri Kenekar --; Shri Dhillon -- the petitioner did not receive any vote; and one vote was invalidated. So, only 47 Corporators participated in the election of Deputy Mayor and Shri Kenekar is declared elected. This aspect of the case is not disputed by either parties to the proceedings.
16. Respondent No. 4-Shri Sonawane; respondent No. 5-Shri Kenekar; and respondent No. 6-Smt. Gunjale, have taken a common stand in their independent affidavits. It is not disputed that at the time of election of the Mayor, 16 Corporators were given assistance; and at the time of election of Deputy Mayor, 7 Corporators were given assistance. However, it is contended that this has not violated either the secrecy of ballot or the secrecy of voting. They have taken the contention that there is a practice being followed in the Corporation at the time of the meetings to give assistance to the Corporators, who are illiterate. In the previous meetings, for the election of Mayor/ Deputy Mayor, or for elections of Members of Standing Committee, etc., assistance was given to the Corporators, who were illiterate or otherwise unable to vote. Instances of such practice are quoted in their respective affidavits.
17. It is, therefore, the common contention of respondents Nos. 4, 5 and 6 that there was no breach of any rule. There was no breach of any provision of the Act when the assistance was given to the Corporators at the time of voting. The general practice, which was being followed, was followed at the time of election of Mayor and Deputy Mayor on 20-4-1999.
18. It is also contended that these Corporators had demanded for assistance and, therefore, assistance was given. In certain cases, as the Corporators being illiterate asked for assistance, the assistance was given; and in certain cases, the Corporator was unable to vote because of ill-health and, therefore, asked for assistance; and so, the assistance was given. As there is no provision either in the Act or under the Rules that assistance should not be given, the Presiding Officer of the meeting had not committed any illegality while giving the assistance.
19. It is further contended that every Corporator had a right to vote at the time of the meeting. It was the duty of the Presiding Officer to see that the Corporator was able to exercise his right to vote. So, when for certain circumstances, it was not possible for the Corporator to exercise the right independently, on his or her demand, assistance was given. If such assistance had not been given, then the Corporator would not have been able to exercise the right of voting. To see that the purpose for which the meeting was called was fulfilled, the Presiding Officer, in her discretion, when the demand for assistance was made, gave the assistance. She was satisfied that the assistance was necessary to the particular Corporator for one reason or the other, and/or, she being satisfied, the assistance was given. The election, therefore, cannot be declared illegal on that count.
20. It is denied that any undue influence was brought on the Corporators for seeking the assistance or by giving assistance. It is also denied that the Corporators, who belong to Shiv Sena Party, were going to vote in favour of the petitioner-Shri Dhillon -- at the time of election of Mayor and/or Deputy Mayor, It is contended that a whip was issued by the leader of the Shiv Sena Party in the Corporation directing the members of Shiv Sena Party to vote in favour of respondents Nos. 4 and 5 and, therefore, it was not necessary to take any further step to see that the Corporators of the Shiv Sena Party would vote as against the whip.
21. It is denied that these members of Shiv Sena Party were going to vote in favour of the petitioner-Shri Dhillon; the leaders of Shiv Sena Party had received information to that effect and, therefore, to see that they should not vote in favour of the petitioner-Shri Dhillon assistance was given to pressurise the Corporators. It is also denied that any threats were given to the Corporators of Shiv Sena Party that they would suffer dire consequences if they were not to take assistance at the time of the voting. The petitioners have not given the details, as to whom, where and when such threats were given or undue influence was exercised on the Corporators of Shiv Sena Party to make them vote in favour of respondents Nos. 4 and 5. The allegations are very vague and unsupported by evidence and so, they be ignored.
22. It is further contended that none of the Corporators to whom the assistance was given at the time of the voting had raised any objection for giving such assistance in the meeting itself. They also did not raise any objection, even thereafter. There is no complaint from anybody that any threat was given or undue influence was used before the meeting dated 20-4-1999, or at the time of the meeting dated 20-4-1999, to make them vote in favour of respondents Nos. 4 and 5. When the voters themselves have not raised any objection, the contentions raised by the petitioners were without any substance.
23. It is also contended by respondents Nos. 4, 5 and 6 that there is no substance in the contention of the petitioner-Shri Dhillon -- that some of the Corporators of Shiv Sena Party were going to vote in his favour for the post of Mayor and/or Deputy Mayor. It is only the imagination of the petitioner-Shri Dhillon -- that some of them were going to vote in his favour; and that, with such a hypothetical case, he has filed the petition.
24. Respondents Nos. 4, 5 and 6 have further contended that there is no breach of any of the clauses of Rule 45 of the Rules of Conduct of Business. Even if for the sake of arguments, it is accepted that 16 voters had voted with the assistance and their voting was seen by the assistants allotted to them, their voles may be rejected as per the provisions of Clause (h) of Rule 45 for the consideration of election of Mayor. Even in that case, as respondent No. 4 is elected by a margin of 19 votes, the result is not going to be affected materially by deleting those 16 votes. Same is the position with respect to election of Deputy Mayor, where 8 voters had voted with assistance; but the petitioner-Shri Dhillon -- has not received a single vote in his favour. So, the result of the election is not being materially affected because of the assistance given to those voters and, therefore, it is not necessary to set aside the election and to direct re-election for the post of Mayor and Deputy Mayor.
25. Respondents Nos. 4. 5 and 6 have given details as to under what circumstances, with respect to each of the voter, to whom the assistance was given, the decision was taken by the Presiding Officer.
26. Respondents Nos. 4, 5 and 6 have, therefore, prayed that these petitions be dismissed.
27. Respondents Nos. 7 to 22 are the Corporators, to whom assistance was given at the time of election.
28. Respondent No. 7 -- Smt. Rukhamanbai Khanderao Lokhande -- has filed the counter and has contended that she belongs to Shiv Sena Party. She cannot read and write Marathi and, therefore, she had asked for assistance at the time of voting for the election of Mayor and Deputy Mayor on 20-4-1999. She has stated that she voted at the time of meeting with the help of assistant and she has denied that she desired to cast vote in favour of the petitioner-Shri Dhillon. She has also denied that she was pressurised by anybody to cast vote in favour of respondents Nos. 4 and 5.
29. Respondent No. 9-Sau Padma Baburao Shinde -- also belongs to Shiv Sena Party ; and she has stated in her counter that on 19-4-1999, she and some other members, belonging to Shiv Sena Party, had gone to Paithan. There, they had taken meals in one private hotel at night. The food served in the hotel was not proper and, therefore, she was suffering from acidity, vomiting and dysentery on 20-4-1999. When she attended the meeting, she was very weak due to dehydration. She was feeling giddiness and, therefore, she was not able to vote without any assistance. She asked for assistance and she voted with the help of the assistant at the time of election of the Mayor. However, at the time of election of Deputy Mayor, there was improvement in her physical condition, and, therefore, at the time of voting for election of Deputy Mayor, she did not ask for assistance and voted without the help of the assistant. She also has denied that any pressure was brought on her to vote in favour of respondents Nos. 4 and 5. She has denied that she was to vote in favour of the petitioner-Shri Dhillon.
30. Respondent No. 10-Smt. Champabai Vishwanath Panchal -- also belongs to Shiv Sena Party. She has taken the stand that she cannot read and write Marathi and, therefore, she asked for assistance at the time of voting on 20-4-1999 and she voted with the help of assistant. She has denied that she was pressurised to vote in favour of respondents Nos. 4 and 5, and she has also denied that she was to vote in favour of the petitioner-Shri Dhillon.
31. Respondent No. 11-Sau Dhanshree Ashok Vispute -- has contended in her affidavit that she belongs to Shiv Sena Party and she has stated that she voted for the election of Mayor with the help of assistant because she was not keeping good health on the same grounds, as mentioned by Smt. Shinde -- respondent No. 9. She has also contended that at the time of election of Deputy Mayor, there was improvement in her health and, therefore, she voted at that election without assistance. She has also denied that she was pressurised to vote in favour of respondents Nos. 4 and 5 and that she intended to vote in favour of the petitioner -- Shri Dhillon.
32. Respondent No. 14-Shri Trimbak Ganpatrao Tupe -- in his counter has taken the same stand as is taken by Smt. Shinde and Smt. Vispute, respondents Nos. 9 and 11, in their affidavits.
33. Respondent No. 15-Smt. Pushpatai Sureshchandra Gangwal -- has taken the stand that she was taking treatment in Dr. Kapahtia's hospital at Aurangabad because of slip disc and pain in backbone since prior to 20-4-1999. She was not able to walk and she was taken to the place of meeting in a chair. She was unable to cast vote on her own because of the serious illness. So, she demanded assistance to the Presiding Officer and voted with the help of assistant for the election of Mayor and Deputy Mayor. She also has denied that she was to cast vote in favour of the petitioner-Shri Dhillon --and that there was any undue pressure brought on her to cast vote in favour of respondents Nos. 4 and 5.
34. Respondent No. 16-Shri Dhiraj Shantilal Khokardia -- though duly served has not filed any affidavit in reply.
35. Respondent No. 17-Shri Ramesh Dipchand Lahot -- has stated in his affidavit that he belongs to Shiv Sena Party. He cannot read and write Marathi and, therefore, he had asked for assistance at the time of voting on 20-4-1999 and he voted with the aid of the assistant. He has denied that he was to vote in favour of the petitioner-Shri Dhillon -- and that he was pressurised to vote in favour of respondents Nos. 4 and 5.
36. Respondent No. 18-Smt. Muktabai Sudam Waghmare -- has stated in her affidavit that she belongs to Shiv Sena Party. She cannot read and write Marathi; so, she had asked for assistance at the time of voting in the meeting dated 20-4-1999 and she voted with the help of the assistant. She has also denied that she was pressurised to vote in favour of respondents Nos. 4 and 5 and that she wanted to vote in favour of the petitioner-Shri Dhillon.
37. Respondent No. 19-Subhash Laxminarayan Kachwa; respondent No. 20-Sau. Savita Sanjay Awahad; respondent No. 21-Sau Nirmal Vittal Kamble; and respondent No. 22-Vikas Ratanlal Jain have taken the stand as per the stand taken by Smt. Shinde and Smt. Vispute, respondents Nos. 9 and 11, in their affidavits.
38. Respondent No. 12 -- Smt. Farhat Banu Mohd. Nawaz -- has taken the stand in her affidavit that she is educated upto 9th standard in Urdu medium, but she knows Marathi language. She can read and write Marathi. She has further stated that she had not taken assistance for voting when the meetings were held on 18-4-1996, 7-5-1997 and 20-4-1998. She has further stated that before the meeting dated 20-4-1999, for the election of Mayor and Deputy Mayor, some Shiv Sena Party leaders threatened her and asked her to vote in favour of Respondents Nos. 4 and 5. She has stated that she was warned that Shiv Sena Party knows business and she should know the consequences of voting against Shiv Sena candidates. She was given assistance by the Presiding Officer at the time of voting for the post of Mayor even when she had not demanded the assistance. The assistance was given to bring pressure on her to see that she were to vote in favour of Respondent No. 4. So, she voted for the election of Mayor under the threats and coercion. She has stated that at the time of voting, she had not objected for the assistance being given, because of the fear of Shiv Sena Party.
39. Respondent No. 8 -- Mohd. Saleem Mohd. Haneef Qureshi -- in his affidavit has stated that he can vote without taking assistance. In the meeting held on 18-4-1996, he had voted without, taking assistance. He has stated that he can read and write Marathi. He has stated that before the meeting dated 20-4-1999, pressure was brought on him by the Shive Sena Party leaders to cast vote in favour of Respondents Nos. 4 and 5. He was given threats that otherwise, he will have to face dire consequences. He has further stated that many Corporators were thus pressurised to cast vote in favour of Respondents Nos. 4 and 5. Many members, who had not asked for assistance, were given assistance by the Presiding Officer Respondent No. 6 --at the time of voting. He also stated that pressure was brought on him by the Shiv Sena leaders. He had not asked for the assistance, but assistance was given. Because of the pressure, he could not vote without fear and his right of free voting was violated. He has also stated that many opposition members of "Aghadi" took objection to the high-handed method of the Presiding Officer of giving assistance when it was not asked for for the purpose of voting. He thus has supported the case of the Petitioner --Shri Dhillon.
40. Respondent No. 13 -- Vasant Vinayakrao Deshmukh -- in his affidavit has contended that he was elected as independent candidate, but he was associated with Shiv Sena Party. The petitioner Shri Dhillon--who was also elected as independent candidate was associated with Shiv Sena Party. He Has further contended that the "Aghadi" supported the Petitioner -- Shri Dhillon -- for the election of Mayor and Deputy Mayor. As Shri Dhillon had close connections with many members of the Shiv Sena Party, they intended to vote in his favour at the time of election of Mayor and Deputy Mayor. The leaders of Shiv Sena Party received this information; so, about 32 Corporators were taken to Paithan and they were kept there on 18th and 19th April, 1999 in the Circuit House. On the night of 19th April, 1999, food was provided to all these Corporators in the Circuit House. He himself was with them. He has given the names of 29 Corporators who were at Paithan on 19th April, 1999. He has stated that directions were issued to them at Paithan to vote for Respondents Nos. 4 and 5 and not to vote for the petitioner -- Shri Dhillon. The leaders told that they were knowing who were close to the Petitioner -- Shri Dhillon and who were going to vote in favour of the petitioner -- Shri Dhillon -- and, therefore, those members were directed to ask for assistance at the time of casting vote. The leaders told that the names of members, who were to ask for assistance, will be intimated; and they should vote only with assistance and the Presiding Officer was also directed to give assistance to those members. He has stated that he himself, Smt. Lokhande, Smt. Panchal, Shri Lahot, Smt. Waghmare, Smt. Vispute, Shri Tupe, Smt. Awahad, Smt. Kamble, Shri Jain and Smt. Wadekar were directed that all the time of election, they should ask for Assistance and the assistance will be provided to them to cast their votes.
41. He has further stated that nobody had fallen sick because of the food consumed at Paithan. The meals were not provided in any hotel, but the meals were provided in the Circuit House.
42. He has further stated that out of the 16 Corporators, some requested for assistance because of the threats given by the leaders of Shiv Sena Party. Some had not asked for assistance, but the Presiding Officer gave assistance to them at the time of voting.
43. He had further stated that he and the 9 members, mentioned above, never wanted to vote in favour of Respondents Nos. 4 and 5; and this information was received by the Shiv Sena leaders; and, therefore, assistance was given to them at the time of voting. Because of the fear of Shiv Sena leaders, he and the 9 members voted in favour of Respondents Nos. 4 and 5. He has also stated that the members of the "Aghadi" had taken objection for giving assistance to the Corporators at the time of voting. But the Presiding Officer did not listen to them. He has contended that no member requested for assistance on the ground of illiteracy or on the ground that he was unable to read and write Marathi language or on the ground of illness. The method adopted by the Presiding Officer of giving assistance to those members was illegal. So, he also has supported the petitioners.
44. The petitioner -- Shri Dhillon -- has filed affidavits by way of rejoinder and has denied all the contents of the affidavits of Respondents Nos. 4, 5 and 6. He has also contended that the words, "on demand" ekx.kho:u mentioned in the Minutes filed by Respondent No. 2, indicating that the said members had demanded the assistance for the purpose of voting, are inserted afterwards. The xerox copy of the minutes, which he has filed on record along with the petition, is not showing the words "on demand" ekx.kho:u So, this manipulation is done by Respondents Nos. 4, 5 and 6 to overcome the difficulty that the original minutes were not showing that the members had demanded assistance for the purpose of voting. He has contended that the copy of the minutes, which he has submitted along with the petition, is the correct copy of the minutes. He has also refuted all the contents of the affidavits of Respondents Nos. 4, 5 and 6. He has also produced on record various documents and charts indicating who had sought. assistance for the voting when the meetings were held in the past for the election, of Mayor/Deputy Mayor/Members of the Standing Committee. The documents are also produced to show that most of the members have signed the proceedings book, indicating that they can read and write. Therefore, it is contended that the stand taken by Respondents Nos. 4, 5 and 6 is not at all worth consideration.
45. Respondent No. 5 -- Shri Sonawane --has also filed his affidavit in rejoinder with respect to affidavits filed by Respondents Nos. 8, 12 and 13; and has denied the contentions raised by them in their respective affidavits.
46. From the contentions of the Petitioners and the Respondents, one fact is borne out as admitted that, at the time of election of the Mayor, 16 Corporators voted with assistance; and at the time of election of Deputy Mayor, 7 Corporators voted with assistance and, therefore, this fact is to be accepted as admitted.
47. For the sake of convenience, it is better to tabulate the fact regarding who were the Corporators, who voted with assistance at the election of Mayor and Deputy Mayor in the meeting held on 20-4-1999. The following table will show this position.
Sr. No. Name of the Corporator Ward No. Whether assistance was given to vote Reason pleaded for the assistance 1 2 3 Mayor 4 Dy. Mayor 5 6
01. Ms. Lokhande 01 Yes Yes Illiteracy.
02. Mr. Qureshi 05 Yes Absent Threats.
03. Ms. Shinde 20 Yes No Illness due to food.
04. Ms. Panchal 23 Yes Yes Illiteracy.
05. Ms. Vispute 24 Yes No Illness due to food.
06. Ms. Bano 25 Yes Absent Threats.
07. Mr. Deshmukh 31 Yes Yes Threats.
08. Mr, Tupe 37 Yes Yes Illness due to food.
O9.
Ms. Gangwal 40 Yes Yes Illness due to slipdisc
10. Mr. Khakordia 44 Yes No No affidavitÂ
11. Mr. Lahot 47 Yes Yes Illiteracy.
12. Ms. Waghmare 50 Yes Yes Illiteracy.
13. Mr. Kachwa 56 Yes No Illness due to food.
14. Ms. Awahad 59 Yes No
-do-
15. Ms. Kamble 60 Yes No
-do-
16. Mr. Jain 64 Yes No
-do-
48. The next question arises whether there is any provision under the Act or the rules to grant assistance to the Corporators at the time of voting for the election of Mayor and Deputy Mayor. Here again, there is no dispute that neither the Act nor the Rules framed under the Act provide for giving assistance to the Corporators for the election of Mayor and Deputy Mayor on any count. Section 19 of the Act makes provision for the election of Mayor and Deputy Mayor; but there are no provisions regarding the procedure to be followed for the election of Mayor and Deputy Mayor. Sub-section (1) of Section 19 of the Act makes the only provision, "The Corporation shall subject to the provisions of Sub-section (1A) at its first meeting after general elections and at its first meeting in the same month in each succeeding year elect from amongst the Councillors one of its member to be the Mayor and another to be the Deputy Mayor. "Sub-section (1A) of Section 19 only makes the provision for reservation. The other sub-sections of Section 19 do not make any provision regarding how the election should be held.
49. Chapter II in the Schedule provides for proceedings of the Corporation, Standing Committee, Transport Committee, etc.; and there also, there is no provision regarding the procedure to be followed for the election of Mayor and Deputy Mayor.
However, Section 454 of the Act gives power to the Corporation to alter or to add to the schedule rules not inconsistent with the provisions of the Act to provide for any other matter to be dealt with or for any of the purposes specified in the schedule; and by exercising this power under Section 454 of the Act, the Corporation has framed the Rules for the election of Mayor and Deputy Mayor. Those are the rules from Rule 47 to Rule 58.
50. Rule 49 provides : "When more than one candidate validly nominated of themselves for appointment at the meeting at which the appointment is to be made, the election shall be made by ballot in the manner prescribed by Rule 45." This rule has provided for election of Mayor; and Rule 58 provides that the rules, which are applicable for the election of Mayor, are applicable mutatis mutandis to the election of Deputy Mayor.
51. Rule 45 provides for voting by ballot paper, i.e. secret voting. But, here again, there is no provision for giving assistance to any Corporator while voting by ballot paper.
52. So, the question arises whether it was within the power of the Presiding Officer, the Mayor -- Respondent No. 6, to give assistance to the Corporators for the purpose of voting at the time of the election.
53. The petitioners have not taken the extreme stand that under no circumstances, the Presiding Officer can give assistance to the Corporators for the purpose of voting. From the minutes of the meeting, the portion which is admitted by both sides, it appears that the only stand taken was that assistance be given only to those Corporators, who were illiterate; or, who were physically unable to cast their vote; and the assistance be given only on demand. So, it appears that the petitioners are also admitting a situation where the Presiding Officer will have to give assistance to a Corporator for the purpose of voting.
54. The learned counsel for respondents Nos. 4 to 6 have argued that even in case of general elections, Rule 40 of the Conduct of Elections Rules, 1961, provides that, the Presiding Officer, if satisfied that a voter owing to blindness or other physical infirmity is unable to recognise the symbols on the ballot paper or to make a mark thereon without assistance, shall permit the voter to take with him a companion to assist him for recording his vole. It is, therefore, contended that in the election of Mayor and Deputy Mayor also, such assistance can be given.
55. The learned Counsel further argued that in order to give effect to the purpose for which the meeting is called and to see that no Corporator loses his right of voting, because of some circumstances, the Presiding Officer can provide him assistance even if there is no provision under the Act or the rules. For that purpose, the Presiding Officer may formulate a scheme for giving assistance and may give assistance to the Corporators, who need the same. Thereby, the purpose of the meeting will be fulfilled and, so also, the Corporator would be able to exercise his right of voting.
56. There cannot be disagreement that if the voter is blind then he would need assistance for the purpose of voting. There also cannot be disagreement that when because of physical infirmity, a voter cannot put the mark against the name of the candidate to whom he desires to vote, then assistance can be given to him to put the mark. If such a contingency arises, the Presiding Officer shall, in ordinary course, give assistance to the Corporator, who asks for the assistance. The learned counsel for the petitioners have not disputed this position. The Corporators themselves also had not disputed this position on 20-4-1999, when the voting process was going on.
57. However, here, it is being contended that some of the Corporators were illiterate and some were ill and, therefore, were not able to cast their vote. Therefore, the assistance had to be given to these voters. It is true, considering the method of election of Mayor and Deputy Mayor, it would not have been possible for the Presiding Officer to make pre-arrangement to allot any symbols to the contesting candidates. The nominations were given at the beginning of the meeting and, after withdrawal of the nominations, the ballot papers were prepared then and there. However, the question then remains, whether any other method could have been adopted to help the illiterate or blind Corporators for the purpose of voting. We must note here that these illiterate Corporators arc not imbecile. So, if some instructions had been given to them by the Presiding Officer before voting, they could have voted without assistance. Only two candidates were there contesting for the election of Mayor; as well as for the election of Deputy Mayor. So, even if the serial numbers of the two candidates appearing on the ballot papers had been described to the illiterate voters, they would have been able to vote without assistance, remembering which candidate was at Serial No. 1 and which candidate was at Serial No. 2.
58. The ballot papers for 82 Corporators were prepared. Those must have been prepared with the help of typewriter, or, cyclostyling. No such information is brought on record, but it does not appear that all the ballot papers were prepared in handwriting. So, while preparing the ballot papers, the Presiding Officer could have directed to put some mark against name of each of the contesting candidate to identify him from the other contesting candidate; and that mark could have been explained to the illiterate Corporators, so that they would have been able to identify the candidate for the purpose of voting. This method also was not followed. The Respondents are under the impression that the only method to help the illiterate Corporators was to give assistance of somebody for the purpose of voting.
59. We would like to refer to the observations of the Apex Court in the matter of Jaenendrakumar Phoolchand Daftari v. Rajendra Ramsukh Mishra . Their Lordships have observed in para 8 (at page 590 of AIR):
There is no provision in the Rules requiring allotment by the Presiding Officer of symbols to candidates, where the voting of the members of the Panchayat for the election of the Sarpanch or Upa-Sarpanch by means of secret ballot becomes necessary. Such provision is not envisaged since the Presiding Officer cannot be expected to get the ballot papers with symbols ready all of a sudden in the meeting wherein the elections has to be completed. However, if a situation arises where an illiterate member is required to vote, that fact may be borne in mind by the Presiding Officer and he may evolve a procedure which would enable the illiterate member to vote e.g. if there are two or more candidates, he may ask the member to put a cross mark for candidate A, a zero mark for candidate B and so on or the Presiding Officer may assist such a member to cast the vote for the candidate of his or her choice. In such situations, the Presiding Officer, could, as well, record in the minutes of the meeting.
as to how, he has rendered the assistance to a member who could not cast his vote by ballot, in the usual course, for such recording may help in avoiding future controversies on the matter......."
60. These observations of the Apex Court clearly indicate that it is not necessary to give assistance of some other person to the illiterate Corporate to cast his vote. In the present case, the Presiding Officer could have followed the scheme suggested by the Apex Court. However, that was not done.
61. Taking into consideration the circumstances that no Corporator was blind and that only a few Corporators were illiterate, we do not think that it was necessary to give assistance of somebody else for such voters to cast their votes. However, as in the present matter, the Petitioners have not seriously disputed the question of casting vote by the illiterate candidates with the help of some other person, the point rests there only.
62. Here, we may draw reliance on the observations made by the Division Bench of this Court in the matter between Baburao and etc. v. The Collector, District Parbhani, . While considering the provisions qua Municipal elections for giving assistance to the illiterate, blind or infirm voters, the Division Bench observed (at page 53) :
The purpose of framing Conduct of Business Rules is to regulate the meetings. They help members to have an orderly business.
It is true that the rule-making authority has not provided that the Presiding Officer may give assistance to an illiterate or an infirm or blind voter in recording his vote. But that itself will not prevent Presiding Officer to meet exigency arising out of presence of such an infirm voter in the House. If we interpret the omission for this eventuality in the rules to mean that no assistance could be provided, we would be defeating valuable statutory right which the member has, merely because he is illiterate or blind or infirm.
This can never be the intention of the Legislature.................
63. So, if the exigencies are such that the Presiding Officer has to give assistance to a voter to help him cast his vote, then, notwithstanding that there is no such rule, the Presiding Officer can give assistance to such voter in order to enable him to cast his vote.
64. So, even to a literate Corporator, who is infirm because of illness, the Presiding Officer may give assistance for casting the vote. Giving assistance, by itself, in such circumstances, neither will amount breaching of secrecy of ballot or breaching of secrecy of voting. However, as observed by the Apex Court in the case of Daftari (cited supra), the Presiding Officer will have to write the minutes very clearly to make it known as to in what circumstances assistance was given and how was it given. If that duty is not complied with, then the consequences may be different.
65. Here, the main controversy is that no assistance was demanded and even then assistance was given. This aspect of the case has to be considered from two angles. One, whether the Petitioners have made out the case that no assistance was demanded and even then the assistance was given; and, two, what would be the effect on the election, if the assistance was given without demand.
66. We would first consider the first angle. The learned counsel for the petitioners have, argued that the petitioner -- Shri Dhillon himself was present in the meeting; he was the contesting candidate and he has stated in his affidavit that the members had not asked for assistance and even the assistance was given. This contention of the petitioners is supported by Respondents Nos. 8, 12 and 13 in their affidavits and this much evidence is sufficient to hold that the assistance was given without there being any demand for the assistance and also without there being any reason to give assistance.
67. However, the learned counsel for Respondents Nos. 7, 9 to 11, 14, 15 and 17 to 22 have contended that because of the specific reasons, the Corporators had asked for assistance and the assistance was given accordingly by the Presiding Officer -- Respondent No. 6. There was a demand for assistance.
68. In this respect, besides the statements made by the parties in their respective affidavits, help can be taken from the minutes of the meeting. The petitioner has produced one copy of the minutes along with the petition, while Respondents Nos. 2 and 3 have produced another copy of the minutes of the meeting. As a controversy is raised by the Respondents with respect to the copy of the minutes produced on record by the petitioner, the original minutes are also called in the Court.
69. It is the contention of the learned counsel for the respondents that the minutes, which are confirmed in the subsequent meeting, are giving the true picture of what had happened at the time of the meeting held on 20-4-1999 and only those minutes can be relied upon. The copy of the minutes, which is produced on record by the petitioner, is not true and certified copy of the confirmed minutes and, therefore, it cannot be relied upon.
70. In this respect, the learned counsel for the Respondents have relied upon the ruling of Division Bench of this Court in the matter of Raosaheb Babasaheb Kakade v. State of Maharashtra, reported in 1999 (2) Mah. LJ 367, and have contended that the observation. "Thus, confirmation of the minutes of an earlier meeting is a declaration that the minutes have been accurately written", applies in this case. So, the petitioners now cannot dispute the certified true copy of the minutes, which is produced on record by the Respondents; and those only must be taken into consideration as to what happened in the meeting held on 20-4-1999.
71. Chapter II of the Schedule to the Act makes a provision for writing of the minutes in Clause (n) of Rule 1. It reads :
"(n) a minute of the names of the Councillors present and of the proceedings at every meeting shall, on the day following the meeting, or as soon thereafter as may be, be drawn up and kept by the Municipal Secretary in a book to be provided for this purpose . and shall be signed at, and by the presiding authority of, the next ensuing meeting; and the said minute book shall at all reasonable times be open at the chief Municipal office to inspection by any Councillor free of charge and by any other person on payment of a fee of eight annas."
72. This particular rule does not provide such minutes must be confirmed in the subsequent meeting. So, the provisions of Section 111(3) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1962, which were considered in the case of Raosaheb (cited supra) by the Division Bench of this Court is quite different from the provisions under the Act. The confirmation of the minutes in the subsequent meeting is not obligatory. Only thing is that the minutes are required to be signed by the Presiding Officer of the next ensuing meeting at the time of the next ensuing meeting.
73. So, at the most, it can be said that a presumptive value can be given to the minutes, which are signed by the Presiding Officer of the next meeting. The presumption is rebuttable. The confirmation of the minutes is not required under this rule and, therefore, it cannot be said that all the Corporators, who were present in the next meeting, had confirmed the minutes of the previous meeting. There cannot be an estoppel against those Corporators; and they can dispute the correctness of the minutes.
74. However, reliable evidence will have to be brought on record to dispute the correctness of the minutes.
75. The original minutes of the meeting of 20-4-1999 were handwritten as is disclosed from the file, which is produced on record by Respondents Nos. 2 and 3. As per the rule, the Municipal Secretary is expected to write the minutes. Here, the Secretary of the Corporation has not filed any affidavit with respect to these minutes. The typed copy of the minutes produced on record and which is also there in the original file indicates that whenever any Corporator was given assistance for voting, the minutes mention that such assistance was given "on demand" ekx.kho:u. However, in the handwritten minutes, the words "on demand" ekx.kho:u was not written at many places and it was added afterwards and this was mentioned in the margin. This has happened with respect to Corporators, Smt. Gangawal (Ward No. 40), Smt. Shinde (Ward No. 20), Smt. Panchal (Ward No. 23), Smt. Vispute (Ward No. 24), Smt. Farhat Bano (Ward No. 25), Smt. Awahad (Ward No. 59) in the case of election of Mayor; and Smt. Lokhande (Ward No. 1) with respect to election of Deputy Mayor.
76. There is no explanation from the Respondents as to why this word ekx.kho#u (on demand) was required to be written afterwards. This has importance, because the Minutes show that the members of the opposition were all the while taking objections that assistance was being given without demanded by the Corporators. When such objection was being taken, repeatedly, by the Corporators of the opposition group, in ordinary course, if really there had been any demand for assistance, then that would have found place in the original minutes written by the Secretary. The very circumstance that the word ekx.kho#u (on demand) is recorded afterwards by interpolation indicates that the minutes are not that much reliable, especially when it is not mentioned by any of the Respondent when this interpolation was carried out.
77. The xerox copy of the minutes, which is filed on record by, the Petitioner, does not include this interpolation of the word ekx.kho#u (on demand). The Respondents may have taken the stand that the copy which is filed by the petitioner on record is not authenticate copy, because it is not certified true copy. But there is one more important circumstance, which clearly indicates that this copy is the copy of the original handwritten minutes and it was obtained by the petitioner -- Shri Dhillon -- before interpolation was carried out. The copy, which is filed on record, shows that the corner of the last page where there should have been signature of the Mayor is torn. The original handwritten minutes also show that the corner of the last page where there should have been signature of the Mayor is torn. So, definitely, the copy which is produced on record by the Petitioner, is the copy of the original handwritten minutes.
78. It clearly appears that as the contention of the opposition group was that assistance was being given without demand, and that was brought on record in the minute book, the Respondents found that the words "on demand" ekx.kho:u were not there with respect to some of the Corporators to whom assistance was given; so to overcome this difficulty, the words "on demand" ekx.kho:u were inserted by interpolation afterwards. It clearly appears that an attempt is made to change the minutes and that creates doubt about the bona fide of Respondents Nos. 4, 5 and 6.
79. Thus, if the circumstances that the Corporators were taking objection in the meeting that assistance was being given without demand and in the original minutes the words ekx.kho#u (on demand) were not there with respect to certain Corporators, to whom the assistance was given, are taken into consideration, we can say that the minutes, which are produced on record by Respondents Nos. 2 and 3 cannot be given the presumptive value as to be accurate recording of what had happened in the meeting on 20-4-1999. The presumption is sufficiently rebutted by the petitioners.
80. So, it is established by the Petitioners that assistance was given to certain Corporators even when they had not demanded for assistance.
81. Respondents Nos. 8, 12 and 13 have specifically stated that they had not demanded assistance, but the assistant was foisted upon them; and they had to vote in the presence of the assistants. Out of these Respondents, Respondent No. 13 -- Shri Deshmukh -- has admitted that he belongs to the group of Shiv Sena Party. But, he has contended in the affidavit that because of the coercion and undue influence brought on him, he voted in favour of Respondents Nos. 4 and 5. But, Respondents Nos. 8 and 12 were not belonging to the group of Shiv Sena and they have nowhere stated that they wanted to vote for Respondents Nos. 4 and 5. Their affidavit indirectly indicates that they did not want to vote for Respondents Nos. 4 and 5, but they had to vote for Respondents Nos. 1 and 5 because of the presence of the assistants. The learned counsel appearing for Respondents Nos. 8 and 12 has also argued to that effect on their behalf.
82. It is the contention of the Respondents that some of the Corporators were illiterate and, therefore, assistance was given. In this respect, Respondent No. 7 Smt. Lokhande, Respondent No. 10 Smt. Panchal, Respondent No. 17 Shri Lahot, and Respondent No. 18 Smt. Waghmare, have contended that as they cannot read and write Marathi, they had sought assistance from the Presiding Officers; and accordingly, assistance was given. However, we find that in the minutes, it is nowhere mentioned that assistance was given to these Corporators, because they had asked assistance on the ground that they could not read and write Marathi. So just to help Respondents Nos. 4 and 5, now, such stand is being taken by these Respondents. It cannot be relied upon.
83. Respondents Nos. 9, 11 and 19 to 22 have taken the stand that they had been to Paithan on 19-4-1999; they had taken meals in a hotel at night at Paithan; the food was unwholesome and, therefore, they were suffering from acidity, vomiting and diarrhoea in the morning of 20-4-1999. They had become very weak because of the dehydration. They were feeling giddiness and, therefore, they were unable to vote.
84. The learned counsel for the petitioners have argued that the reason given by these Corporators -- Respondents -- is not at all believable. Respondent No. 13 -- Shri Deshmukh also had been to Paithan on 19-4-1999 along with these Corporators and other Shiv Sena Corporators and he had denied that the meals were served in a hotel. He had stated that the meals were served on the night of 19-4-1999 at Paithan in the Circuit House and nobody had suffered from food poisoning. The learned counsel for the petitioners have also pointed out that none of these Corporators had taken medical help either before coming to the place of meeting or even after reaching to the place of meeting. They did not mention that they were ill and unable to vote without assistance. There is no such reference in the minutes and, therefore, the stand taken by these Corporators is not believable. They had not asked for assistance; there was no reason for them to ask for assistance, but the Presiding Officer made them to vote with assistance.
85. It is really surprising that so many Corporators had suffered from food poisoning and no action was taken by the authorities against the Hotel Keeper who had served that food. Obviously, no such action could be taken, because the Corporators are not disclosing the name of the hotel in which they have taken the food. The stand taken by them is basically false and, therefore, the Corporators have not named the hotel in which they have taken the food on the night of 19-4-1999 at Paithan. If the affidavits of these Respondents are read, it will be very clear that those are just carbon copies of one affidavit.
86. If the Corporators were really so much ill, how is it that none of them took medical help either before going to the meeting or in the meeting hall. The Municipal Medical Officer was present at the time of the meeting and it does not appear that even any medical aid was taken from him by any of these Corporators because of their illness.
87. So, it is not at all believable that the Corporators were suffering from food poisoning and, therefore, had become very weak and unable to vote without assistance. The reason given by them in the affidavits is altogether false.
88. The very circumstance that this reason is not mentioned in the minutes indicates that no such reason was stated before the Presiding Officer for seeking assistance. These circumstances also indicate that these Corporators -- Respondents had not asked for assistance and even then assistance was given to them by the Presiding Officer.
89. It is strongly contended by the learned Counsel for Respondents Nos. 4, 5 and 6 that, if the Presiding Officer had been satisfied that assistance was required and if she had given assistance, then that act cannot be challenged. The satisfaction of the Presiding Officer is subjective satisfaction. Here, Respondent No. 6 states in her affidavit that she was satisfied that these Corporators needed assistance and, therefore, she had given assistance.
90. The proposition of law that the Presiding Officer had to be satisfied that assistance was needed and that satisfaction is subjective satisfaction can be accepted. However, the Respondents must prove that there were reasons for the Presiding Officer to have her subjective satisfaction. For that, two things will have to be established; first, that there was demand for assistance; and second, reason was given by the Corporators as to why they were demanding assistance.
91. The above discussion will show that there was no such demand for assistance and no reason was given by any of the Corporator, to whom assistance was given, as to why assistance was required. To have subjective satisfaction, the Presiding Officer had no circumstance before her to come to the conclusion that assistance was necessary. It is worth to note that the Presiding Officer--Respondent No. 6, Smt. Gunjale --In her affidavit has nowhere stated that she had seen the condition of these Corporators and she found that they were really very ill and unable to move and cast vote without assistance and, therefore, she had given the assistance. Even if she had made any such statement in the affidavit, that could not have been believable without there being reference to that fact in the minutes itself.
92. So, the petitioners have established that so far as these Corporators -- Respondents are concerned, there was no demand for assistance; no reason was given for claiming assistance; no reason was considered by the Presiding Officer Respondent No. 6 -- for giving assistance and even then assistance was given.
93. Respondent No. 16--Shri Khakordiya has not filed any affidavit on record. So, the position is that he is neither supporting the petitioners nor supporting the Respondents. But, in the given situation, in his case also, it can be said that the assistance was given without demand.
94. So far as the illiterate Corporators are concerned, even if it is considered that the Presiding Officer was knowing that they were illiterate and, therefore, assistance was given, we have already pointed out that even In their cases, it was not compulsory to give assistance. They could have voted without assistance, if the method suggested by the Apex Court in the decision (cited supra) had been followed. Even with respect to certain illiterate Corporators, the record indicates that in some previous meetings, they had voted without assistance. That means that they could have voted in the meeting of 20-4-1999 without assistance.
95. The next question is whether, by giving such assistance to the Corporators at the time of voting, secrecy of the ballot or the secrecy of the voting is violated ; and whether that will be a ground to set aside the election.
96. The petitioners have contended that threats were given to the Corporators that they must vote for Respondents Nos. 4 and 5; otherwise, they will suffer dire consequences. The Corporators, who were likely to vote against Respondents Nos. 4 and 5, were already marked and they were asked to demand for assistance and the Mayor --Respondent No. 6 -- was also directed to give assistance to them. Thus, these Corporators could not vote freely. They exercised their right to vote, but under duress. They really wanted to vote for the Petitioner -- Shri Dhillon, but could not vote because the assistant was present when they were casting their vote, to see to whom the vote was being cast.
97. The learned counsel for the Respondents have argued that there is no specific evidence indicating that particular leader of Shiv Sena Party gave threats to these Corporators. There is no evidence as to when and where threats were given. All the allegations are very vague. Even when the assistance was given, the Corporator was free to vote as per his choice and these Corporators have exercised their right. The assistants, who helped the Corporators to cast vote, were the high ranking officers working in the Corporation and no doubt about their integrity can be taken. There is nothing on record to indicate that these officers were directed to report back as to whom the Corporators had voted. No such evidence is coming forward.
98. The learned counsel for the Respondents have further argued that the Corporators belonging to Shiv Sena Party were not in any circumstance going to vote in favour of the petitioner -- Shri Dhillon. A whip was issued by their party leader and, therefore, these Corporators under any circumstances would have voted for Respondents Nos. 4 and 5. The Shiv Sena Party is well-organised, disciplined party and. therefore, it is only the imagination of the Petitioner -- Shri Dhillon -- that these Corporators were going to vote in his favour at the time of the meeting. No such conclusion can be drawn on the basis of the evidence, which has come forward. These Corporators have specifically stated in their affidavits that they never intended and wanted to vote in favour of the petitioner -- Shri Dhillon and they wanted to vote in favour of Respondents Nos. 4 and 5; and accordingly, they have voted without any compulsion or pressure. So, the petitioners cannot claim that the election be set aside on these grounds.
99. No doubt, the Respondents, barring Respondents Nos. 8 12, 13 and 16, have stated that they wanted to vote for Respondents Nos. 4 and 5; there was no pressure on them and they had not voted under compulsion. It also appears that they had not objected at the time of voting that assistance was being given to them without their demand and against their wishes. However, this circumstance, by itself, will not be sufficient.
100. The petitioners have not stated which of the leaders of Shiv Sena Party gave threats; when and where the threats were given. But, is it necessary to come out with such open threats to secure the votes, in the present circumstances? If all these Corporators were taken to Paithan on 19-4-1999, just a day prior to the date of meeting, then, it cannot be said that they had gone there just for religious purposes only; as is stated in their affidavits. How come, all 32 Corporators suddenly thought of going to Paithan to take Darshan of Samadhi of Eknath Maharaj. The further circumstance that at the time of meeting, they did not demand assistance, but meekly submitted when the assistance was provided also indicates that they were not allowed to exercise their choice freely. Obviously, neither they could dare to take objection at that time, nor they can take any different stand when the matter is before the Court. The reasons need not be stated.
101. It is contended that when the whip was issued by the leader of the Shiv Sena party in the Corporation, the Corporators were definitely going to vote in favour of Respondents Nos. 4 and 5; otherwise, they would have suffered the disqualification under the provisions of the Maharashtra Local Authorities (Members) Disqualification, Act, 1986; and they would have lost their seat as Corporator.
102. It is true that the consequences could have taken place, but then, it also would have been very difficult for the party in power to prove exactly who had voted against the party candidate. If the enquiry as per the provisions of the said Act had ensued, probably, the party in power would have asked for the verification of the ballot paper to prove before the inquiring authority that particular members had voted against the party candidate in spite of the whip. But, by that time, they would have lost the election of the Mayor and the Deputy Mayor. Furthermore, disqualification of so many members from the party would have resulted in bringing that party in minority in the House of the Corporation. The leaders of the party did not want such consequences. Therefore, the easiest method was found out to give assistance, without even demand, to these Corporators, so that they would not dare to vote against party candidates, i.e., Respondents Nos. 4 and 5. This ingenious method was used by the leaders of Shiv Sena Party, to see that their candidates got elected.
103. Undue influence was brought on these Corporators to vote in favour of Respondents Nos. 4 and 5 by giving assistance to them at the time of voting.
104. In this respect, we would like to refer to the observations of the Apex Court in the case of Ram Sharan Yadav v. Thakur Muneshwar Nath Singh, It is observed in para 7 :
.......There is no ritualistic formula nor a cut-and-dried test to lay down as to how a charge of undue influence can be proved but if all the circumstances taken together lead to the irresistible inference that the voters were pressurised, threatened or assaulted at the instance of either the candidate or his supporters or agents with his consent or with his agents' consent that should be sufficient to vitiate the election of the returned candidate.
105. Respondents Nos. 4 and 5 were present in the House at the time of voting. They were knowing that the members of the opposition group were taking objection that assistance was being given to the Corporators, even though the assistance was not demanded for and even when there was no reason to give assistance. Respondent No, 6 -- the Presiding Officer -- was not paying any heed to these objections and was giving assistance to the said Corporators. Respondents Nos. 4 and 5 did not object to giving such assistance. Their silence indicates that they were consenting with Respondent No. 6 to give such assistance. So, whatever had happened on the floor of the House, with respect to giving assistance to the Corporators for voting, had happened with the consent of Respondents Nos. 4 and 5.
106. If all the circumstances, which are discussed above, are taken into consideration, it can be said that this was a method adopted by Respondents Nos. 4, 5 and 6 to cause undue influence on the Corporators at the time of voting]
107. Various rulings of Apex Court and the High Court are relied upon by the Respondents to show that there must be clear, unequivocal, evidence to prove that undue influence was brought on the voters. But, all those rulings are with respect to the provisions under the Representation of the People Act, 1951, where causing undue influence happens to be as per the provisions of Section 173 of the Indian Penal Code; and a criminal offence, and, therefore, it is rightly held in every case that undue influence or corrupt practice must be proved strictly. However, so far as the Act is concerned, there is no such provision with respect to the election of Mayor and Deputy Mayor. No criminal consequences are going to arise if such undue influence is caused on the voters under the provisions of the Act or the Rules under the Act. Hence, the principles laid down in those rulings cannot be made applicable strictly to the present case.
108. The general elections and elections in a House under the Act must be treated on different footings. The election under the Act for the post of Mayor and Deputy Mayor takes place within a definite and small number of voters. The ways and means can be found out by the groups in the small House to influence the voting and to obtain the required post of Mayor and Deputy Mayor, or, the Members of the Standing Committee, Chairman of the various Committees, etc. Many a times, money power or muscle power is used to achieve the material ends.
109. If, in the present case, so many members belonging to Shiv Sena Party had voted against the official candidates, namely, Respondents Nos. 4 and 5, definitely Respondents Nos. 4 and 5 would have lost the election, because the petitioner -- Shri Dhillon -- had secured 31 votes out of 82 for the election of Mayor. In such circumstances, even if there are no details or definite statements as to who gave the threats, when the threats were given, etc., the circumstances which are brought on record are sufficient to hold that method of assistance was adopted to influence the voters, so that they would not be able to vote as per their free choice.
110. We would like to refer to the observations made in the judgment of Division Bench of this Court in the case of Baburao (cited supra). It is observed in para 10 :
"Secrecy is one of the essentials of the election process. It is necessary to safeguard persons entitled to vote from the consequences which are external to the process of election either in the form of punishment or in the form of reward for voting in a particular manner. If the secrecy is not maintained, it may result in the direct interference of the electoral right amounting to undue influence.........."
111. We would also like to refer to the observations made in the matter of Kalimuddin Gulam Dastgir v. The Government of Maharashtra, reported in 1986 Mah LJ 79. In this matter also, the Division Bench of this Court, in paragraph 14, has observed :
It is true that secrecy of the ballot is one of the essentials which should be maintained because it is so basic that in every election secret ballot should be there. Under the Rules of 1981, secret voting is provided which is to be followed by following these Rules. (The Rules considered were Maharashtra Municipalities (President Election) Rules, 1981) Sometimes there are elections which are held by show of hands. So the secrecy of election by ballot is only a safeguard against the corrupt practices, bribery and coercion or any threats. Voting must be a free voting. There must not be coercion. The voter must not be threatened in any way to exercise his free will so that the elector must express his free will and give his vote. It is for that purpose that secret ballot is used.
112. When the rules prescribe that the election of Mayor and Deputy Mayor has to be held by secret ballot, then every voter, and especially the Presiding Officer of the meeting, must endure to see that secrecy of ballot is maintained. On flimsy grounds, or, as in the present case, no grounds, a voter must not be asked to vote in the presence of an assistant, provided by the Presiding Officer. The secrecy of voting is definitely violated in this election of Mayor and Deputy Mayor, because of the method adopted by Respondents Nos. 4, 5 and 6 of giving assistance to some of the voters.
113. It is being argued by the learned counsel for Respondents Nos. 4, 5 and 6 that only the high ranking Corporation officers were asked to assist the voters and, therefore, there was no possibility of causing any. breach of the secrecy. It is also argued that the petitioners have not made out the case that the officers" were directed to report to whom these Corporators had voted and, therefore, by giving assistance, secrecy is not breached.
114. On the face of it, the argument appears very attractive. However, it is to be noted that all these officers were directly under the control of the ruling party. The way the officers have behaved at the time of the meeting clearly indicates that, meekly, they submitted to the directions given by the Presiding Officer. Nobody dared to bring it to the notice of the Presiding Officer that, here, there was no circumstance to give any assistance to the Corporator voting in the meeting. So, it cannot be said that because they were high ranking officers of the Corporation, they were independent persons.
115. The question is not whether it is proved that there was any direction to the officers to report to whom the votes were given. The very circumstance that they were directed to give assistance, when the assistance was not demanded and when there was no reason to give assistance, is sufficient to draw the conclusion that the secrecy of the voting was lost. It has also to be noted that such evidence can never be brought, neither the persons giving the directions would come forward to say that such directions were issued, nor the persons to whom the directions were given would come forward to say that such directions were issued. The matter is within the knowledge of these two parties and, if the circumstances are there sufficient to unveil to know what has happened, then those circumstances will speak for themselves. Separate evidence is not necessary and not possible to come on record.
116. The learned counsel for the Respondents have very strongly argued that Rule 45 is not making any provision for rejecting the vote which is given in the presence of an assistant. When there is no such rule, the Court cannot supplement the rule for rejection of the vote.
117. The learned counsel for the petitioners have specifically relied upon Rule 45(h). However, the learned counsel for the Respondents have contended that even that rule is not applicable in the present matter.
118. The relevant provisions of Rule 45 are as follows :
45. The manner of ballot voting.-
Ballot voting shall be taken in the following manner :--
(a) The presiding authority shall, in the first instance, appoint Scrutinisers, not exceeding three in number. Immediately before the polling commences, the presiding authority shall show to the Councillors, present at the meeting, that the ballot box is empty and shall then lock it for use and put a seal on it. Thereafter, he shall hand over the locked ballot box, by keeping a key of it with himself, to an officer from the office of the Municipal Secretary, who shall be called for this purpose, "Polling Officer". The Presiding Officer's Chamber or some other convenient place shall be fixed for the purpose of polling; and the Polling Officer shall remain in such place as is fixed for the purpose of polling.
(b) An officer from the office of the Secretary shall remain posted at the entrance of the voting place and he shall hand over the ballot paper to each Councillor at the time of his entry into the polling place. The ballot paper shall be handed over to the Councillor after obtaining his initials against his name on the list of members.
(c) After receiving the ballot paper, the Councillor shall enter the polling place, proceed to one of the tables put in the place for the purpose of voting, record his vote on the ballot paper, fold the ballot paper and put it in the ballot box in the presence of the Polling Officer; and thereafter shall leave the polling place immediately.
(d) Curtains shall be raised around the table in order to ensure that no one sees whom the Councillor has voted.
(e) The ballot papers should be given to as much number of Councillors as are the number of vacant tables in the polling place; and sufficient time gap should be observed while giving ballot papers, to the Councillors, so that every one of them has sufficient time to record his vote.
(f) and (g) ........................
(h) If, at any time during the course of voting, the Polling Officer sees that a Councillor is looking into another's ballot paper; or, is showing his ballot paper to someone, he shall set aside that ballot paper, without putting it into the ballot box, and bring this fact to the notice of the presiding authority, who shall thereupon cause that ballot paper to be cancelled.
(i). ......
(j) A ballot paper shall be treated invalid, if :--
(i) a Councillor signs his name, writes any word, or makes any distinguishing marks thereon;
(ii) it does not bear perforated mark; or
(iii) it is without vote recorded thereon; or is void for uncertainty."
119. One must admit that these rules, whether in Marathi or English, are not drafted in clear and correct language (they have been corrected in the above text, wherever possible, without sacrificing their import), but those are to be considered as those are. The spirit behind these rules is that utmost care be taken and maintained for the secrecy of the voting. Rule 45(h) makes it clear that, if the ballot paper is shown by the voter to somebody, or, it is seen by somebody, then it is to be cancelled by the Presiding Officer, when the circumstances are brought to the notice of the Presiding Officer by the Polling Officer. It may be argued in the present case that the Polling Officer did not bring to the notice of the Presiding Officer that the persons, who were directed to give assistance, had seen the ballot paper on which the voter had recorded his vote. But, was it necessary for the Polling Officer to bring it to the notice of the Presiding Officer? The Presiding Officer was very well knowing that the assistance was given for that purpose only. So, when the assistant had gone along with the Corporator for the purpose of voting, at the instance of the Presiding Officer, then, whether one could expect that Presiding Officer would cancel such vote?
120. On the contrary, this rule clearly indicates that it is the duty of the Polling Officer and Presiding Officer to keep watch that the secrecy of voting is maintained, and no Corporator shows the ballot paper on which vote is recorded to any other person; or. no other person should see such ballot paper. This expectancy under the rules is completely breached in the present case.
121. Relying on the ruling of the Division Bench of this Court in the case of Kalimuddin Dastgir (cited supra), the learned counsel for the Respondents have argued that the vote can be cancelled as per Rule 45(h), or, vote can be declared as invalid, as per the three contingencies mentioned in Sub-rule (j) of Rule 45. The Court cannot supplement any more grounds for cancellation or invalidation of the vote.
122. The observations on which the learned counsel for the Respondents are relying from the said ruling are as follows :
There is a clear provision in the Rules and the authority is also empowered under Sub-rule (9) of Rule 6 of the Rules of 1981 to reject the ballot papers on four grounds. The Clauses (a), (b), (c) and (d) do not show that violation of secrecy of voting is one of the grounds on which the vote, can be treated as invalid. If the Legislature did not think either by providing any circumstance by which rule of secrecy is treated to be violated in the Rules itself or it did not mention one of the grounds in Sub-rule (9), we do not think that we may import one of our own views and add something to the Rules, which is impermissible for a Court of law. There is no provision for rejecting the ballot paper on the ground of violation of secrecy.
123. The facts of that case were peculiar and quite different from the facts in the present case. There, it was alleged that two of the voters, at the time of voting, while depositing their ballots in the ballot box, have displayed their ballots to the Councillors present in the hall and thus, violated the secrecy of voting. The elected candidate had secured 17 votes, while the defeated candidate had secured 16 votes. So, this breach of secrecy of the ballot was a material issue in the said matter. It was contended that the ballots ought to have been rejected as per Rule 9 of the 1981 Rules (the Maharashtra Municipalities (President Election) Rules). As a fact, it was not accepted by the Division Bench that the ballot papers were displayed to the other Councillors. Furthermore, the rejection of the ballot paper was sought, as per the provisions of Rule 9 and the only contingencies on which the ballot paper could be rejected were enumerated in clauses (a) which is unmarked; (b) which has cross marked against more names than one; (c) the marking on which is uncertain; and (d) which bears the signature or any mark or writing by which in his opinion the voter can be identified. So, it was rightly observed in the said judgment that showing of the ballot paper to other Councillors is not one of the grounds for rejection of the ballot papers; and the Court cannot invent a new ground for rejection of the ballot paper.
124. In that matter, as per the allegations, the Councillors themselves had shown the ballot papers to other Councillors. So, there was a possibility of mischief being played to vitiate the entire election by adopting such method. Keeping in mind these peculiar circumstances, the observations are made in the said ruling by the Division Bench.
125. The facts in the present case are quite different. Here, the Presiding Officer herself has deputed the assistants to see to whom the Corporators have given their vote. The election is challenged on the ground of the method adopted by the Presiding Officer. The individual votes given by the voters, who had voted with the assistance, are not challenged in the present proceedings. The blame is not put on the voters ; the blame is on what the Presiding Officer did; what the two contesting candidates did, with respect to the method adopted at the time of voting, which resulted in breaching of secrecy of voting. If this distinction is kept in mind, then, it will be very clear that the observations made in the case of Kalimuddin Dastgir (cited supra) cannot be made applicable to the present case.
126. One more circumstance has to be noted that, here, Rule 45(h) expects that the ballot paper should not be shown to anybody or it should not be seen by anybody. Here, there is a specific provision in the rules with respect to this aspect of the case, which was not there in the Rules of 1981, considered in the case of Kalimuddin Dastgir (cited supra). Therefore, the present case stands on a different footing than the said case.
127. Here, a duty is cast upon the Presiding Officer to see that the secrecy of voting is being maintained. However, she failed to maintain the secrecy of voting.
128. The learned counsel for respondents Nos. 4, 5 and 6 have also argued that even if the 16 votes, which were cast with the help of assistance for the election of Mayor; and 7 votes, which were cast at the election of Deputy Mayor, are totally excluded, or, treated as cancelled as per the provisions of Rule 45(h), even then the election is not materially affected. Respondents Nos. 4 and 5 have secured more votes than the petitioner-Shri Dhilon and, therefore, it is not necessary to set aside the election.
129. No doubt, it is a well-accepted principle of law that if the margin between the votes secured by the elected candidate and the votes secured by the defeated candidate is more than the invalid votes, then such election is not going to affect materially; and such election should not be set aside. However, as it is pointed out above, the challenge is not to the individual votes. The challenge is to the method in which the voting progressed at the time of election of Mayor and Deputy Mayor. If the procedure adopted itself is invalid, against the rules, against the principles of democracy and principle of maintenance of secrecy of ballot, then, merely because the elected candidate is elected by a large margin of votes, it cannot be said that the Court should not disturb such election. If the voters, who were not seeking assistance and who had no reason to seek assistance, had voted freely without assistance, then the picture would have been different than what it is now. Even if, for the sake of arguments, it is accepted that these 16 voters would not have voted in favour of the petitioner-Shri Dhillon, the fact remains that the method in which the election proceeded was not maintaining the secrecy of voting and secrecy of ballot. The petitioner -- Shri Dhillon -- had every right to expect; and for that matter, all the Corporators had every right to expect, that the election would take place in fair and free manner. That expectation is not fulfilled by the Presiding Officer. Election had not taken place in fair manner. It was not a free election.
130. Even if one of the Corporators was forced to have assistance at the time of voting, that would have given signals to the other Corporators to behave in expected manner. So, they would have been sufficiently alerted to exercise their right of vote in the manner desired by the powers that be. Here, respondents Nos. 8 and 12 have stated in their affidavits that out of fear of Shiv Sena leaders, they had not raised any objection when the assistance was given without asking; and they did vote as per the expectations of the leaders of Shiv Sena. This much statement, by itself, is sufficient to hold that there was no atmosphere in the House for the Corporators to vote fearlessly and as per their choice. In such circumstances, the matter cannot be resolved merely by saying that 16 votes secured by respondent No. 4; or, 7 votes secured by respondent No. 5, which were cast with the assistance, be cancelled and, then, the result be looked into; and, as the votes so secured by respondents Nos. 4 and 5 are more than the votes secured by the petitioner-Shri Dhillon -- the election need not be cancelled.
131. Hence, to conclude, we hold that respondent No. 6-the then Mayor and Presiding Officer of the Meeting held on 20-4-1999 for the election of Mayor and Deputy Mayor of Aurangabad Municipal Corporation -- caused breach of secrecy of voting and breach of secrecy of ballot, by giving assistance to the Corporators, who had not asked for such assistance and when there was no reason for giving assistance. This has resulted in not holding the election in free and fair manner. The circumstances do indicate that, undue influence was brought on the Corporators at the time of voting. The manner in which the voting has taken place is not expected either under the Act or under the Rules; or, even, under the principles of democracy and secrecy of ballot and voting. So, the entire proceedings with respect to the election of Mayor and Deputy Mayor has to be set aside and quashed. The Corporation must hold fresh election for the post of Mayor and Deputy Mayor. Hence, the election of Respondent No. 4 as Mayor of the Corporation; and the election of respondent No. 5 as Deputy Mayor of the Corporation, are set aside; and the Corporation is directed to hold fresh election for the post of Mayor and Deputy Mayor, as per the provisions of the Act and the relevant Rules.
132. Before parting with this Judgment/ we would like to mention that the Rules framed by the Corporation under Section 454 of the Act are not in clear and correct language. The English version does not tally with Marathi version and, at many places, confusion is caused. So, we expect that immediate steps will be taken to redraft the Rules in correct and clear language. At that time, efforts also be taken to make sufficient provisions to plug the mischiefs which may be caused at the time of elections. We are aware that Rules cannot be framed to meet every contingency. But, an effort must be made to make proper provisions for the maximum contingencies that can be visualised.
133. In the result, Writ Petition No. 2162 of 1999; and Writ Petitions Nos. 2764 and 2765 of 1999; are allowed. Rule made absolute, with no order as to costs.