S.S. Nijjar, J.
1. We have heard the learned counsel for the parties at length and perused the record of the case.
The petitioner and respondent Nos.4 to 16 were elected as Councillors Of the Municipal Council, Jaitu, Distt. Faridkot. The first meeting of the newly elected Municipal Councillors (hereinafter referred to MCs), was held on 23.02.2003, under the Chairmanship of the Convener, respondent No. 2 (Sub Divisional Magistrate, Jaitu) for holding the elections of the President and the Vice-President. The petitioner and respondent No. 4 were duly proposed for being elected as President. An election was held by show of hands and after counting of votes of both the sides, result was declared that both the parties have secured eight votes each. Subsequently, one of the voters, namely Sher Singh, who had proposed the name of the petitioner is alleged to have said that he had neither proposed he name of the petitioner nor cast the vote in his favour. He rather stated that he had cast the vote in favour of respondent No. 4. On this, there was exchange of hot words between the parties of both the sides, but Sher Singh specifically stated that he had cast his vote in favour of respondent No. 4. On a recount, respondent No. 4 was declared elected. The petitioner has, therefore, challenged the aforesaid decision taken by the Convener in this petition under Articles 226/227 of the Constitution of India and has prayed for the issuance of a writ in the nature of certiorari quashing the proceedings of the meeting of the Municipal Councillors. Jaitu held on 23.2.2003, to the limited extent where respondent No. 4 has been declared elected. The petitioner had also challenged the election of the Vice-President but at the time of arguments of the writ petition, learned counsel for the petitioner had restricted the challenge only to the declaration of the result with regard to the office of the President. According to the learned counsel for the petitioner, the election to the office of the President and Vice-President of the Municipal Council are governed by Section 20 of the Punjab Municipal Act and the Rules known as the Punjab Municipal (President & Vice-President) Election Rules, 1994, as amended vide notification No. GSR/71/P.A. 3/11/S.240/Amd. (4)/2001 dated 17.5.2001 (hereinafter referred to as the Rules). The relevant provisions of the Act and the Rules are as under:-
'PUNJAB MUNICIPAL ACT:
20. Election of the President and Vice-President.- (1) 'Every Municipality shall, from time to time, elect one of its members to be its President and the member so elected shall on being notified by the State Government shall become President of the Municipality'.
(2) Every Municipality may also, from time to time, elect one or two of its members to be Vice-President or Vice-Presidents and when two Vice-Presidents are elected on the same date, the Municipality shall declare which of them shall be deemed to be the senior.
(3) Not withstanding anything contained in this section an ex-officio member shall not be eligible for election as President or Vice-President of the Municipality'. 24. Notification of Election and Oath or Affirmation of Allegiance.-
(1) xxx xxx xxx(2) The State Government shall notify in the official Gazette every election of President of a Municipality and no President shall enter upon his duties as such until his election is so notified.
Provided that the State Government may refuse to notify the election as President of any person who has incurred a disqualification under this Act or under any other law for the time being in force, subsequent to his election as member of the Municipality.
Provided further that the State Government shall not refuse to notify the election of the President without giving an opportunity of being heard to the concerned person'.
RULES;
1. Short title and commencement.- (1) These rules may be called the Punjab Municipal (President and Vice President) Election Rules, 1994. (2) They shall come into force at once.
2. Definition:
In these rules, unless the context otherwise requires:-
(a) Act means the Punjab Municipal Act, 1911;
(b) 'Election' means Election of a President and Vice-President of a Municipality.
(c) 'Deputy Commissioner' means Deputy Commissioner of the concerned District.
(d) 'Government' means the Government of the State of Punjab in the Department of Local Government; and
(e) 'Gazetted Officer' means a Government servant belonging to any All India Specialist or State service or any other Government servant holding a post which may have been declared by the competent authority to be a Gazetted post.
3. Manner of Election:
The Deputy Commissioner or any Gazetted Officer authorised by him in this behalf (hereinafter in this rule referred to as the convener) shall, within a period of fourteen days of the publication of the notification of election of members of newly constituted Municipality, fix, by giving not less than forty eight hours notice to be served at the ordinary place of residence of all the elected members a date for convening the first meeting of the elected members of such municipality by stating in the notice that at such meeting the oath of allegiance will be administered to the members present and also stating that the President and the Vice-President or Vice-Presidents as the case may be will be elected.' (4) The voting for the offices of President Senior Vice-President and Vice-Presidents as the case may be shall be by show of hands.
(2) The person Presiding over the meeting convened under Rule 3, shall keep a brief record in writing'.
5. Conduct of election:
(1) When the office of the President or the Vice-President is to be filed:-
(a) If only one candidate for the office is proposed, he shall be declared to have been elected;
(b) If there is more than one candidate, the candidate who obtains the largest number of votes shall be declared to have been elected; and
(c) if two or more candidates obtain an equal number of votes, the person presiding over the meeting shall at once decide between the candidates by drawing a lot in the presence of the members attending the meeting.
2. When there are two offices of Vice-President of a Municipality and both such offices are to be filled: -
(a) Voting shall take place at the same election for both the offices of the Vice-president of a Municipality and each member of the Municipality shall record one vote only;
(b) the two candidates who obtain the largest number of votes shall be deemed to be elected;
Provided that if owing to the fact that two or more candidates have obtained an equal number of votes, it is impossible to decide which of the two candidates have obtained the largest number of votes, the matter shall be decided by a lot in the manner specified in Clause (c) of Sub-rule (1); and(c) the candidate obtaining the largest number of votes shall be deemed to have been declared by the Municipality to be the Senior Vice-President and the candidate obtaining the second largest number of votes shall be deemed to be the Junior Vice-President provided that if both the candidates elected have obtained an equal number of votes, the matter shall be decided by a lot in the manner specified in Clause (c) of Sub-rule (1).
6. xxx xxx xxx7. Filling of casual vacancies: When there are two offices of Vice President of a Municipality and one such office falls vacant, the Vice-President remaining in office shall be deemed to be the Senior Vice President for the period of his unexpired term and an election of the vacant office of the Junior Vice-President shall beheld in the manner prescribed in Rules 4 and 5'.
3. According to the petitioner, after the counting of the votes as eight and eight in favour of both the candidates, the Convener under the pretext of consulting the rules, adjourned the meeting for 15 minutes. When the group of the petitioner returned to the meeting after the adjournment, they were told that the proceedings had been completed and a copy of the same will be supplied to them later on. On hearing this, the group of the petitioners walked out from the meeting. The proceedings of the meeting were not supplied to the members of the group of the petitioner. On 3.4.2003, the petitioner learnt about the issuance of the notification dated 2.4.2003 (Annexure P-2) notifying that respondent No. 4 is the President of the Municipal Council.
4. Written statements have been filed on behalf of the respondent Nos.2, 3 and 4. A preliminary objection has been taken to the effect that in view of the Article 243ZG of the Constitution of India, the writ petition is not maintainable as the petitioner can file an election petition under Section 87 of the Punjab Municipal Rules, 1994. On merits, it is stated that after counting the votes, the Members of the Municipal Council were asked to append their signatures on the resolution to authenticate i.e., to confirm the vote. At that time, Sher Singh has stated that his vote has been wrongly recorded in favour of the petitioner. Rather he has voted in favour of respondent No. 4. Therefore, he put his signature in favour of respondent No. 4 on the resolution. Since, respondent No. 4 had received nine votes, he was, therefore, declared elected.
5. We have considered the submissions made by the learned counsel for the parties.
6. Mr. J.R. Mittal, learned Senior Advocate, has submitted that once there was a tie between the petitioner and respondent No. 4 the only course open to respondent No. 2 was to draw the lots in the presence of the Members attending the meeting in view of the Rule 5(c) of the Rules, reproduced above.
7. We are of the considered opinion that it was not permissible for the Convener to change the vote of Sher Singh once it had been recorded in favour of the petitioner. Once, it was found that the two candidates has obtained an equal number of votes, the Convener was duty bound to at once decide between the candidates by drawing a lot in the presence of the Members attending the meeting. It was not permissible for the Convener to ignore the mandate of the Rules.
8. In view of the above, the present petition is allowed. The proceedings of themeeting dated 23.3.2003 relating to the election of the President are quashed from thepoint from where a declaration had been made that both the parties have secured eightvotes each. The Convener shall hold a draw of lots in accordance with Rule 5(c) of theRules in the presence of the Members who attended the meeting on 23.3.2003, thereafter, the result be declared in accordance with law.
Sd/- S.S. Grewal, J.