Mr. Jalil Ahmed Ansari and anr. Vs. the Development Commissioner and ors. and Shri Madan Kaul V. Union of India and ors. - Court Judgment

Excerpt:
constitution of india, 1950 - article 226--writ--election challenged--carpet export promotion council--notifying the schedule of election--telegraph strike--no provision for extension of time--prayer to quash the notification--since election is vitiated on the ground of procedural irregularities--contested--as per rule iii of rules of the carpet export promotion council petition must be file within 30 days from the declaration of result--record perused--court commissioner was appointed--reported that even if all the eligible voters would have cast their votes, that would not have materially affected the result of the election--meritless petition--dismissed. - - 339/2001 also filed a writ petition with the prayer for quashing the notification as well as raying for direction to constitute an enquiry into the acts of development commissioner, ministry of textiles and with further prayer of issuing writ of prohibition prohibiting the respondent nos. t s chadha, executive director-cum-secretary as well as returning officer. post/speed post/courier/by hand and record observations to this effect on the envelopes as well as on the deliver receipts.ordervijender jain, j.1. the petitioners have challenged the election to the carpet export promotion council on the ground that the notification issued by respondent-carpet export promotion council notifying the schedule of election, date of issue of the list of valid nominations and issue of postal ballot papers were on 1.12.2000 and last date of the receipt of the postal ballot papers in the office of respondent-carpet export promotion council was 21.12.2000 and date of polling was 22.12.2000. it was contended that the employees of department of post and telegraph went on strike from 15.12.2000 which continued till the filing of the writ petition i.e. 19.12.2000. it was contended that on account of strike the postal ballot papers which were issued on 1.12.2000 could not reach the voters and as per the rules of the respondents, there was no provision for extension of time. on that account the prayer was made to quash the notification dated 30.10.2000 by which the election of respondent-carpet export promotion council was announced and scheduled. this court on 20.12.2000 issued notice and directed the respondents not to count the ballots which may be received pursuant to the election schedule announced by them. on 17.1.2001 one madan kaul, petitioner in c.w.p. no.339/2001 also filed a writ petition with the prayer for quashing the notification as well as raying for direction to constitute an enquiry into the acts of development commissioner, ministry of textiles and with further prayer of issuing writ of prohibition prohibiting the respondent nos.4 and 5 in c.w.p. no.339/2001 from preventing a meeting of the committee of administration, respondent no.5 is mr. t s chadha, executive director-cum-secretary as well as returning officer.2. mr. bansal, learned counsel appearing for the petitioners, on the basis of election rules firstly contended that returning officer at the behest of development commissioner has permitted certain persons to vote and contest the election who otherwise were ineligible under the rules. one such example was given of mr. md mirza, who was contesting for the post of committee of administration member on the ground that he has not cleared his dues since 1997. yet another contention raised by mr. bansal was that in spite of the order passed on 20.12.2000 in c.w.p. no.7770/2000 directing the respondent not to count the ballots still the respondents counted the ballot papers. it was further contended by mr. bansal that although rules provided that the ballot papers be sent to voters by registered post, it was not done. mr. bansal laid great stress that the schedule of election as announced by the respondents did not give 22 days period as per the rules which is at page-26 of the paper book under the heading 'postal ballot'. as that rule would be relevant to decide the controversy, same is reproduced below :-'postal ballot : i) postal ballot papers (forms v-a to v-f) shall be sent to the members by the secretary in respect of chairman, vice-chairman and different categories of members of the committee of administration through registered post by on the address of his/her registered office available on record in the office of the council at least 22 (twenty two) days before the date of actual poll. the members wishing to exercise voting right through postal ballot shall cross mark by ink or ball pen against the name of the candidate in whose favor he wishes to vote, fold the ballot paper, keep in a special envelope provided along with ballot paper for the purpose by the carpet export promotion council, written on it 'ballot paper secret'. the secret envelope containing ballot paper shall be put into another envelope by the member exercising his right to vote and sent to the secretary, export promotion council under registered post/speed post/courier/by hand through authorised representatives as provided under article 20 of the article of association so as to reach 24 (twenty four) hours before the time appointed for start of voting process is person i.e. latest by 10.00 a.m. of the day previous to the date fixed for election, the outer cover should also contain the words 'ballot paper' prominently. the authorised representative shall be issued a receipt for the secret envelope containing ballot paper delivered by him in the office of the council. (ii) the ballot paper shall be received by the council through regd.post/speed post/courier or by hand and shall be put into a box duly sealed by the members of the election committee without making any official receipt of the entry. the council shall accept the envelopes even if found to be tampered by regd.post/speed post/courier/by hand and record observations to this effect on the envelopes as well as on the deliver receipts. the decision for counting of such doubted envelopes will, however, be decided by the returning officer in consultation with the election committee. sealed box shall be opened 24 hours prior to counting of votes in presence of he members of the election committee for purpose of making official entries in records without opening the sealed envelopes. (iii) all the envelopes containing sealed ballot papers shall be collectively handed over to the returning officer on the date of counting along with list of valid voters as per council's records for being opened and counted on the date fixed for election.' lastly, it was contended by mr. bansal that after the appointment of court commissioner, it is seen that on the so many envelopes the name of courier company have not been given, thereforee, there is likelihood of the ballots being stuffed by respondent nos.4 and 5 and on this score the election is vitiated on the ground of procedural irregularities committed by the returning officer.3. ms. geeta luthra, learned counsel appearing for respondent-uoi has contended that this petition is not maintainable as there is a right to file the petition within 30 days from the declaration of results as per the rules of the carpet export promotion council and rule (iii) of the said rules is as follows :-iii. in case of any petition to be field within 30 days from the declaration of results against the decisions in disputes on any of the matters above, decision of the development commissioner (handicrafts), govt. of india, ministry of textiles, shall be final and binding.4. she further contended that the petition filed by mr.madan kaul is an abuse of the process of the court as no grounds have been mentioned in the earlier petition filed by mr. jalil ahmed ansari in c.w.p. no.7770/2000 which have been taken in the subsequent petition filed by mr. madan kaul.5. mr. rajiv nayar, learned counsel appearing for respondent nos.2 and 3 in c.w.p. no.7770/200 and for respondent nos.3 and 5 in c.w.p. no.339/2001, has contended that pursuant to rule 25(ii) of the rules 1/3rd of the total number of members of committee of administration are elected by rotation and similarly chairman and two vice-chairmans are also elected after the expiry of two years. he has further contended that as per carpet export promotion council rules the election has to be held by 31st december every year and, thereforee, notification for calling the election was issued on 30.10.2000. he has contended that out of total eligible voters of 1158, 798 voters exercised their franchise. he has further contended that there is no procedural irregularities committed by the respondents. he has contended that out of 13 voters, who made representations that postal ballots have not been received, 9 cast their votes and the result of the election will not be materially affected if for persons have not received the ballot papers.6. i have given my careful consideration to the arguments advanced by learned counsel appearing for the parties. there is an obvious fallacy in the arguments of mr.bansal with regard to his challenge to the schedule of election as notified on 30.10.2000. from the perusal of rules relating to postal ballots which will be apparent that postal ballot papers have to be sent to the members through registered post at least 22 days before the date of actual poll. the ballot papers were sent on 1.12.2000 by registered post. i have perused the counter-foils of the postal receipts' sent by registered a/d. rules further provide that the said ballot papers must reach 24 hours before the time appointed for start of voting process i.e. latest by 10.00 a.m. on the day previous to the date fixed for election. in this case 22.12.2000 was the date fixed fro election, thereforee, all ballot papers were to reach to the respondents on 21.12.2000 latest by 10.00 a.m. on that day.7. as there was controversy with regard to the fact whether ballot papers have been sent and have been received by the members, this court appointed court commissioner with the direction to prepare the report in tabulation form in the presence of election committee members, returning officer and chairman of the respondent-council. it was directed that the names of courier companies form whom the ballot papers have been received, will be tabulated. court directed that the counting be done in the presence of court commissioner on 16.2.2001 at 4.00 p.m. in the office of respondent-council. pursuant to that court commissioner prepared the report and tabulated the result as ell as tabulated separate statements indicating the seriall numbers of respective courier companies as assigned by them on various envelopes and the name of courier companies. mr. bansal has contended that on some of the envelopes name of courier company was not there. that argument of the learned counsel for the petitioners does not hold any ground as on all the envelopes there was a seriall number which was given by the courier company. in some cases the courier company gives seriall number on the envelope and not their own name on the envelope. i have gone through the statement which is prepared in 27 sheets in tabulated form indicating the seriall numbers of the voter, name of the city of the voter, seriall numbers on the envelopes as given by courier companies with name of courier companies wherever it is available. from the perusal of the same it cannot be said that any impropriety was committed by the respondents.another argument of mr. bansal that persons not eligible was allowed to contest and cast vote regarding one mr. m d mirza that he was allowed to cast his vote whereas he has not paid the dues as per the rules of the respondent-council. the eligibility criteria fro participating and contesting the election is decided on the basis of rules which allow a member where such member is a firm or a company, if it has cleared its dues, it entitles to nominate one representative for the elections whether to vote or to contest. mr. m d mirza was a partner of m/s irfan carpets, which had cleared its dues and as such mr. mirza was allowed to participate in the election. i do not see any force in the arguments of the learned counsel for the petitioners that any order of this court was violated by the respondents. as a matter of fact, respondent-mr. t s chadha, returning officer, vide his note dated 21.12.2000 brought to the notice of the members of the election committee that court has issued show cause notice returnable on 17.1.2001 directing the respondents not to count the ballot papers and till such time ballot boxes may be sealed in the presence of election committee members to be opened after vacation of the stay order. the election committee members thereafter decided to make entries of bigger close envelopes received in the respondent-council office till 10.00 a.m. on 21.12.2000 and thereafter seal the box for further orders of the court. the ballots were not counted in view of the order dated 20.12.2000. this note was signed by the members of election committee. thereforee, it cannot be said that the ballot papers were counted in defiance of the orders passed by this court.8. after the appointment of court commissioner pursuant to the orders passed by this court counting of the votes was held, the petitioner no.1, mr.jalil ahmed ansari, who contested for the post of ii vice-chairman, received 186 votes whereas the other contestant mr. nasrullah ansari received 579 votes i.e. more than 50% of the total strength of the votes i.e. 1158. similarly, mr. madan kaul, other writ petitioner, contested for the post of chairman,m received 174 votes while his opponent, mr. k r wattel received 596 votes which is also more than 50% of the total strength of votes. this result will also indicate that even if all the eligible voters would have cast their votes that would not have materially affected the result of the election.9. for the reasons stated above, i do not see any merit in these writ petitions and the same are dismissed. respondents are allowed to announce the election result on the basis of counting done by the court commissioner.petition stands dismissed.

Judgment:
ORDER

Vijender Jain, J.

1. The petitioners have challenged the election to the Carpet Export Promotion Council on the ground that the notification issued by respondent-Carpet Export Promotion Council notifying the schedule of election, date of issue of the list of valid nominations and issue of postal ballot papers were on 1.12.2000 and last date of the receipt of the postal ballot papers in the office of respondent-Carpet Export Promotion Council was 21.12.2000 and date of polling was 22.12.2000. It was contended that the employees of Department of Post and Telegraph went on strike from 15.12.2000 which continued till the filing of the writ petition i.e. 19.12.2000. It was contended that on account of strike the postal ballot papers which were issued on 1.12.2000 could not reach the voters and as per the Rules of the respondents, there was no provision for extension of time. On that account the prayer was made to quash the notification dated 30.10.2000 by which the election of respondent-Carpet Export Promotion Council was announced and scheduled. This Court on 20.12.2000 issued notice and directed the respondents not to count the ballots which may be received pursuant to the election schedule announced by them. On 17.1.2001 one Madan Kaul, petitioner in C.W.P. no.339/2001 also filed a writ petition with the prayer for quashing the notification as well as raying for direction to constitute an enquiry into the acts of Development Commissioner, Ministry of Textiles and with further prayer of issuing writ of prohibition prohibiting the respondent nos.4 and 5 in C.W.P. no.339/2001 from preventing a meeting of the Committee of Administration, respondent no.5 is Mr. T S Chadha, Executive Director-cum-Secretary as well as Returning Officer.

2. Mr. Bansal, learned counsel appearing for the petitioners, on the basis of election Rules firstly contended that Returning Officer at the behest of Development Commissioner has permitted certain persons to vote and contest the election who otherwise were ineligible under the Rules. One such example was given of Mr. MD Mirza, who was contesting for the post of Committee of Administration Member on the ground that he has not cleared his dues since 1997. Yet another contention raised by Mr. Bansal was that in spite of the order passed on 20.12.2000 in C.W.P. no.7770/2000 directing the respondent not to count the ballots still the respondents counted the ballot papers. It was further contended by Mr. Bansal that although Rules provided that the ballot papers be sent to voters by registered post, it was not done. Mr. Bansal laid great stress that the schedule of election as announced by the respondents did not give 22 days period as per the Rules which is at page-26 of the paper book under the heading 'POSTAL BALLOT'. As that Rule would be relevant to decide the controversy, same is reproduced below :-

'POSTAL BALLOT :

i) Postal Ballot papers (Forms V-A to V-F) shall be sent to the Members by the Secretary in respect of Chairman, Vice-Chairman and different categories of Members of the Committee of Administration through Registered Post by on the address of his/her Registered Office available on record in the office of the Council at least 22 (Twenty two) days before the date of actual poll. The Members wishing to exercise voting right through Postal Ballot shall cross mark by ink or ball pen against the name of the candidate in whose favor he wishes to vote, fold the ballot paper, keep in a special envelope provided along with ballot paper for the purpose by the Carpet Export Promotion Council, written on it 'BALLOT PAPER SECRET'. The secret envelope containing ballot paper shall be put into another envelope by the member exercising his right to vote and sent to the Secretary, Export Promotion Council under Registered Post/Speed Post/Courier/By Hand Through Authorised Representatives as provided under Article 20 of the Article of Association so as to reach 24 (Twenty Four) hours before the time appointed for start of voting process is person i.e. latest by 10.00 A.M. of the day previous to the date fixed for election, the outer cover should also contain the words 'BALLOT PAPER' prominently. The Authorised Representative shall be issued a receipt for the secret envelope containing Ballot paper delivered by him in the office of the Council.

(ii) The Ballot Paper shall be received by the Council through Regd.Post/Speed Post/Courier or by hand and shall be put into a box duly sealed by the members of the Election Committee without making any official receipt of the entry. The Council shall accept the envelopes even if found to be tampered by Regd.Post/Speed Post/Courier/by hand and record observations to this effect on the envelopes as well as on the deliver receipts. The decision for counting of such doubted envelopes will, however, be decided by the Returning Officer in consultation with the Election Committee. Sealed box shall be opened 24 hours prior to counting of votes in presence of he Members of the Election Committee for purpose of making official entries in records without opening the sealed envelopes.

(iii) All the envelopes containing sealed Ballot Papers shall be collectively handed over to the Returning Officer on the date of counting along with list of valid voters as per Council's records for being opened and counted on the date fixed for election.'

Lastly, it was contended by Mr. Bansal that after the appointment of court commissioner, it is seen that on the so many envelopes the name of courier company have not been given, thereforee, there is likelihood of the ballots being stuffed by respondent nos.4 and 5 and on this score the election is vitiated on the ground of procedural irregularities committed by the Returning Officer.

3. Ms. Geeta Luthra, learned counsel appearing for respondent-UOI has contended that this petition is not maintainable as there is a right to file the petition within 30 days from the declaration of results as per the Rules of the Carpet Export Promotion Council and Rule (III) of the said Rules is as follows :-

III. In case of any petition to be field within 30 days from the declaration of results against the decisions in disputes on any of the matters above, decision of the Development Commissioner (Handicrafts), Govt. of India, Ministry of Textiles, shall be final and binding.

4. She further contended that the petition filed by Mr.Madan Kaul is an abuse of the process of the Court as no grounds have been mentioned in the earlier petition filed by Mr. Jalil Ahmed Ansari in C.W.P. NO.7770/2000 which have been taken in the subsequent petition filed by Mr. Madan Kaul.

5. Mr. Rajiv Nayar, learned counsel appearing for respondent nos.2 and 3 in C.W.P. no.7770/200 and for respondent nos.3 and 5 in C.W.P. no.339/2001, has contended that pursuant to Rule 25(ii) of the Rules 1/3rd of the total number of members of Committee of Administration are elected by rotation and similarly Chairman and two Vice-Chairmans are also elected after the expiry of two years. He has further contended that as per Carpet Export Promotion Council Rules the election has to be held by 31st December every year and, thereforee, notification for calling the election was issued on 30.10.2000. He has contended that out of total eligible voters of 1158, 798 voters exercised their franchise. He has further contended that there is no procedural irregularities committed by the respondents. He has contended that out of 13 voters, who made representations that postal ballots have not been received, 9 cast their votes and the result of the election will not be materially affected if for persons have not received the ballot papers.

6. I have given my careful consideration to the arguments advanced by learned counsel appearing for the parties. There is an obvious fallacy in the arguments of Mr.Bansal with regard to his challenge to the schedule of election as notified on 30.10.2000. From the perusal of Rules relating to postal ballots which will be apparent that postal ballot papers have to be sent to the members through registered post at least 22 days before the date of actual poll. The ballot papers were sent on 1.12.2000 by registered post. I have perused the counter-foils of the postal receipts' sent by registered A/D. Rules further provide that the said ballot papers must reach 24 hours before the time appointed for start of voting process i.e. latest by 10.00 a.m. on the day previous to the date fixed for election. In this case 22.12.2000 was the date fixed fro election, thereforee, all ballot papers were to reach to the respondents on 21.12.2000 latest by 10.00 a.m. on that day.

7. As there was controversy with regard to the fact whether ballot papers have been sent and have been received by the members, this Court appointed court commissioner with the direction to prepare the report in tabulation form in the presence of Election Committee Members, Returning Officer and Chairman of the respondent-Council. It was directed that the names of courier companies form whom the ballot papers have been received, will be tabulated. Court directed that the counting be done in the presence of court commissioner on 16.2.2001 at 4.00 p.m. in the office of respondent-Council. Pursuant to that court commissioner prepared the report and tabulated the result as ell as tabulated separate statements indicating the Seriall numbers of respective courier companies as assigned by them on various envelopes and the name of courier companies. Mr. Bansal has contended that on some of the envelopes name of courier company was not there. That argument of the learned counsel for the petitioners does not hold any ground as on all the envelopes there was a Seriall number which was given by the courier company. In some cases the courier company gives Seriall number on the envelope and not their own name on the envelope. I have gone through the statement which is prepared in 27 sheets in tabulated form indicating the Seriall numbers of the voter, name of the city of the voter, Seriall numbers on the envelopes as given by courier companies with name of courier companies wherever it is available. From the perusal of the same it cannot be said that any impropriety was committed by the respondents.

Another argument of Mr. Bansal that persons not eligible was allowed to contest and cast vote regarding one Mr. M D Mirza that he was allowed to cast his vote whereas he has not paid the dues as per the Rules of the respondent-Council. The eligibility criteria fro participating and contesting the election is decided on the basis of Rules which allow a member where such member is a firm or a company, if it has cleared its dues, it entitles to nominate one representative for the elections whether to vote or to contest. Mr. M D Mirza was a partner of M/s Irfan Carpets, which had cleared its dues and as such Mr. Mirza was allowed to participate in the election. I do not see any force in the arguments of the learned counsel for the petitioners that any order of this Court was violated by the respondents. As a matter of fact, respondent-Mr. T S Chadha, Returning Officer, vide his note dated 21.12.2000 brought to the notice of the members of the Election Committee that Court has issued show cause notice returnable on 17.1.2001 directing the respondents not to count the ballot papers and till such time ballot boxes may be sealed in the presence of Election Committee Members to be opened after vacation of the stay order. The Election Committee Members thereafter decided to make entries of bigger close envelopes received in the respondent-Council office till 10.00 a.m. on 21.12.2000 and thereafter seal the box for further orders of the Court. The ballots were not counted in view of the order dated 20.12.2000. This note was signed by the Members of Election Committee. thereforee, it cannot be said that the ballot papers were counted in defiance of the orders passed by this Court.

8. After the appointment of court commissioner pursuant to the orders passed by this Court counting of the votes was held, the petitioner no.1, Mr.Jalil Ahmed Ansari, who contested for the post of II Vice-Chairman, received 186 votes whereas the other contestant Mr. Nasrullah Ansari received 579 votes i.e. more than 50% of the total strength of the votes i.e. 1158. Similarly, Mr. Madan Kaul, other writ petitioner, contested for the post of Chairman,m received 174 votes while his opponent, Mr. K R Wattel received 596 votes which is also more than 50% of the total strength of votes. This result will also indicate that even if all the eligible voters would have cast their votes that would not have materially affected the result of the election.

9. For the reasons stated above, I do not see any merit in these writ petitions and the same are dismissed. Respondents are allowed to announce the election result on the basis of counting done by the court commissioner.

Petition stands dismissed.