High Court · 2011
Case Details
WP(C) 177/2012 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL) Heard Mr. A.C. Borbora, learned senior counsel, assisted by Mr. 1. M.A. Smith and Dr. M. Bora, learned counsel for the petitioner. Also heard Mr. N .J. Dutta, learned CGC as well as Mr. T. Chutia, learned counsel representing th e respondent No.6. I have also heard Mr. L.P. Sharma, learned Standing Counsel, Gauhati University and Mr. Sunil Murarka, learned counsel representing the respo ndent No.7 in WP(C) No.177/2012, who is the respondent No.6 in the other writ pe tition being WP(C) No.4842/2013. 2. The matter pertains to election/nomination of member to the Dent al Council of India from amongst the eligible electors. While in the 1st writ pe tition being No.WP(C) 177/2012, the prayer made is for setting aside and quashin g the Annexure-E notification dated 07.12.2011, by which the Returning Officer o f election to Dental Council of India and Assam State Dental Council has referre d the particular complaint lodged by the respondent No.7/6 to the Central Govern ment purportedly as per the provisions of the Dentist Act, 1948. By the said not ification, the counting of votes that was scheduled to be held on 09.12.201 unde r Rule 16 of the Dental Council (Election) Regulations, 1952 has been postponed. According to the petitioner, the election having been held, the Returning Offic er ought to have declared the results thereof, instead of referring the matter t o the Central Government referring to the provisions of the Dentist Act, 1948, w hich according to him has no application at the stage of declaration of results. It is the further prayer of the petitioner to issue a direction to the Returnin g Officer to declare the results. 3. In the 2nd Writ petition, the petitioner has prayed for setting aside and quashing of the election/nomination of the respondent No.7/6 to the De ntal Council of India by the Gauhati University. In this connection he has chall enged the Annexure-3 notification dated 09.12.2013, issued by the Registrar, Gau hati University, notifying that as per the AGM of Gauhati University Court held on 29.01.2013, the respondent No.7/6 stood elected as a member of the Dental Cou ncil of India for a period of 5 years w.e.f. 29.01.2013. According to the petiti oner, such nomination/election having been obtained by respondent No.7/6 by supp ressing the fact of the aforesaid election, in which he had participated and pen dency of the earlier writ petition being WP(C) No.177/2012, by which, withholdin g the result of the election has been put to challenge, such election/nomination is violated and liable to be interfered with. As noted above, the impugned notification dated 07.12.2011 has b 4. een issued by the Returning Officer postponing the counting of votes that was sc heduled to be held on 09.12.2011 and referring the matter to the Central Governm ent for a decision, is on the basis of the complaint lodged by the respondent No .7/6. For a ready reference, the two complaints lodged by the said respondents, both dated 23.11.2011 are quoted below (relevant extract):- (cid:28) Sir, I, Dr. A.C. Bhuyan, the President of Assam State Dental Council would li ke to bring to your kind notice about the anomalies and irregularities created i n conducting the said election process as stated below. 1. You have notified that the ballot paper would be issued with effect from 21st October 2011. It is observed that the ballot papers have not be en issued in time and as a result many of the electorates residing in places lik e Tripura, Mizoram, Nagaland, Arunachal Pradesh, Manipur and Meghalaya etc. have not received the ballot paper, though the closing date is fixed on 8th of Decem ber 2011. Even some of the voters in the State of Assam (even in Gauhati) itself have not yet received their ballot papers as informed to me. 2. As the DCI Election regulation under Chapter II, clause (a) o f Section 3 page 5, the envelope containing the guidelines, declaration form and the ballot papers should have been sent under Registered Post. However, such en velope must be dispatched through post offices under certificate of posting. 3. It is observed that this mandatory requirement in conducting the election is not followed. 4. Further, it is not understood, how a particular candidate cou ld collect a huge number of envelope bearing the name and address of voters pers onally delivered to the voter. That particular candidate is approaching several voters in different places to personally collect their vote so as to send the vo tes by registered post as required under the rules to the returning officer. 5. As per Dentist Act, a registered dentist is required to intim ate in writing for any change of address to the Registrar of the State Dental Co uncil. The particular candidate has changed the address of many such eligible vo ters in association with the Council office without writing application from the concerned registered dentist. Under the above circumstances, I and several senior registered dentist of the No rth East are convinced that the election procedure to conduct the election to th e DCI is vitiated and lots of malpractices are adopted. This is for your kind appraisal and necessary action. (cid:29) (cid:28) Sir, I, Dr. A.C. Bhuyan, the President of Assam State Dental Council would li ke to bring to your kind notice about the anomalies and irregularities created b y the returning officer for conducting the said election process as stated below . 1. The returning officer notified that the ballot paper would be issued with effect from 21st October 2011. It is observed that the ballot papers have n ot been issued in time and as a result many of the electorates residing in place s like Tripura, Mizoram, Nagaland, Arunachal Pradesh, Manipur and Meghalaya etc. have not received the ballot paper, though the closing date is fixed on 8th of December 2011. Even some of the voters in the State of Assam (even in Gauhati) i tself have not yet received their ballot papers as informed to me. 2. As the DCI Election regulation under Chapter II, clause (a) o f Section 3 Page 5, the envelope containing the guidelines, declaration form and the ballot papers should have been sent under Registered Post. However, such en velope must be dispatched through post offices under certificate of posting. 3. The returning officer has not followed this mandatory require ment in conducting the election. A few envelopes bearing no marking like U.C.P/r egistration number and enclosed as proof. 4. Further, it is not understood, how a particular candidate cou ld collect a huge number of envelope bearing the name and address of voters pers onally delivered to the voter. That particular candidate is approaching several voters in different places to personally collect their vote so as to send the vo tes by registered post as required under the rules to the returning officer. 5. As per Dentist Act, a registered dentist is required to intim ate in writing for any change of address to the Registrar of the State Dental Co uncil. The particular candidate has changed the address of many such eligible vo ters in association with the Council office without writing application from the concerned registered dentist.
Legal Reasoning
Under the above circumstances, I and several registered dentist of the North Eas t are convinced that the election procedure to conduct the election to the DCI i s vitiated and lots of malpractices are adopted. In view of the above situation, I request the appellate authority to kindly say the election procedure and order an enquiry by a competent authority. (cid:29) During the course of hearing, the learned counsel for the partie 5. s have referred to the provisions of the Dentist Act, 1948 and the Dental Counci l (Election) Regulation, 1952. Section 5 of the Act prescribes the mode of elect ions. As per the said provisions, elections shall be conducted in the prescribed manner, and where any dispute arises regarding any such election, it shall be r eferred to the Central Government, whose decision shall be final. Regulation 17 of the Dental Council (Election) Regulations 1952 dealing with the declaration o f results, provides that when the counting of the votes have been completed, the returning officer shall forthwith declare the candidate or candidates to whom t he larger number of valid votes has been given to be duly elected and shall fort hwith inform each successful candidates by letter that he has been elected to th e Council. Regulation 10 provides for publication of results requiring the retu rning officer to report the result and date of election to the State Government, who in turn, shall communicate the information to the Government of India. The Central Government shall then publish the results in the Gazette of India and th e State Government shall thereafter, republish the notification of the Central G overnment in the Official Gazette of the State Government. 6. Regulation 20 lays down the procedure for setting aside election . Before setting aside an election u/s 5, the Central Government shall give an o pportunity to all the parties concerned to show cause why the election should no t be set aside. A decision u/s 5 is required to be given on the enquiry and repo rt of any person appointed by the Central Government in that behalf. 7. On a total reading of the aforesaid provisions of the Dentist Ac t, 1948 and the Dental Council (Election) Regulations 1952, published by the Den tal Council of India, it is seen that section 5 of the said Act comes into opera tion after publication of results as envisaged under regulation 19 preceded by declaration of results as required under Regulation 17. As noted above under Reg ulation 20, before setting aside an election u/s 5, opportunity of being heard i s required to be given to the parties, coupled with furnishing of enquiry report by the person appointed by the Central Government in that behalf. 8. In the instant case, on the basis of the aforesaid complaints lo dged by one of the contesting parties i.e. respondent No.7/6, the returning offi cer issued the impugned notification dated 07.12.2011, postponing the counting o f votes that was scheduled to be held on 09.12.2011. As has been shown in Annexu re-I document dated 09.12.201, there were three contesting candidates namely the petitioner; respondent No.7/6 and one Dr. Jogeswar Barman with elector No.22, 4 6 and 117, respectively. The said document itself reflects that total number of elector as per final electoral Roll was 858, after expiry of one of the elector’ s, the number stood at 857. Total number of ballot papers received by the return ing officer by registered post was 629. Other details have also been furnished i n the said document. 9. If we look into the complaints dated 23.11.2011, lodged by the r espondent No.7/6 quoted above, there is vague and indefinite allegations in resp ect of conducting the election. Moreover, the electors whom the complaint has re ferred to are not named in the complaints. They are also not aggrieved by the el ection that was conducted. In the counter affidavit filed by the respondent No.7 /6, the Annexure-11 series, purportedly copy of the complaints addressed to the returning officer have been annexed. Out of the said documents numbering about 3 1, most are undated. That apart, the language employed in the letters are also i dentical and all are purportedly from Manipur. From the said documents, it is no t discernible as to when the same were forwarded to the returning officer or in fact was forwarded to him or not. In this context, Mr. A.C. Borbora, learned sen ior counsel, appearing for the petitioner, submits that the said documents are f ictitious and product of forgery. He further submits that the case will have to be decided on the basis of the impugned notification and the respondent No.7/6 c annot be permitted to develop his case. In this connection, he has referred to t he decision of the Apex Court in Mahindar Singh Gill and another -vs-The Chief E lection Commissioner, New Delhi and others, reported in 1978 (1) SCC 405. 10. Above apart, as per the provisions of Regulation 11(5), no elect ion shall be invalid by reason of an elector not receiving his voting paper, pro vided that the voting paper have been issued to him in accordance with the regul ations. 11. If we go by the aforesaid complaints annexed with the counter af fidavit filed by the respondent No.7/6, the same plea is alleged non receipt of ballot papers. As noted above, all the complaints are mostly from Manipur and mo stly are undated. It is an admitted position that although as per the requiremen t of the regulations, the ballot papers are required to be sent under certificat e of posting, the said procedure having been abolished by the postal department, the said procedure could not be adopted, but it is not the case of any lector t hat ballot papers were not received by him/her. The impugned notification dated 07.12.201 is by now about 1 ‰ y 12. ears old and yet the Central Government has not been able to take any decision i n the matter. In this context, the learned counsel for the petitioner submits th at since it is not an election dispute as envisaged in the aforesaid provision, the Central Government is not in a position to take any decision. In the counter affidavit filed by the Central Government, referring to the impugned notificati on, it has been stated that certain quarries had been made by sending letters to the returning officer. However, there is no any whisper as to whether the postp onement of the declaration of result by the impugned order amounts to any electi on dispute requiring interference of the Central Government. 13. On a total reading of the Act and the Regulations, it is amply d emonstrated that a dispute would raise only when the election results are declar ed. Once the election results are declared, the party aggrieved by such declarat ion of results can always raise election dispute required to be adjudicated upon by the Central Government. If the election is called off on the basis of the co mplaint of contesting party, a situation may arise in which there may not be fin ality to the election. A party apprehending defeat in the election may raise cer tain objections and if such objections are referred to the Central Government on the ground of being election dispute, there will no finality to the election an d even declaration of election results will be stalled. Needless to say that onc e the process of election gets into motion, normally, it should be brought to it s logical conclusion and should not be allowed to be stalled midway. 14. In the instant case, only on the basis of the complaints lodged by the respondent No.7/6 and no other electors, the counting of votes was postpo ned by the impugned notification dated 07.12.2011 and even after expiry of 1 ‰ y ears, there is no finality to the election. In the above referred document dated 09.12.2011, issued by the returning officer indicating a total number of electo rs and the total number of ballot papers received by registered post, there is s ignature of all the three contesting parties including the respondent No.7/6, ac cepting the said contents. Thus the said document was accepted by all the contes ting parties, but it was on the basis of the above mentioned complaint lodged by the respondent No.7/6, the returning officer passed the impugned order.
Decision
15. In view of the above, I am of the considered opinion that the Ce ntral Government has no role to play at this stage since the election results ar e yet to be declared. Upon declaration of the election results, it will always o pen for the contesting parties to challenge the same on the grounds that may be available to them. 16. In view of the above, the writ petition being WP(C) No.177/2012 is allowed, directing the returning officer i.e. the respondent No.6 to declare the results of the election forthwith. Depending upon the outcome of the declara tion of results, the future course of action shall govern. 17. This now leads us to the 2nd writ petition being WP(C) No.4842/2 013, in which the petitioner has challenged the election/nomination of the respo ndent No.7/6 by the Gauhati University, vide the notification dated 09.02.2013. 18. In the counter affidavit filed by the Gauhati University, it has been contended that there were three applicants seeking nomination to the Denta l Council of India. The said three applicants were the Principal, Regional Denta l College, Guwahati; the Vice Principal, Regional Dental College, Guwahati (resp ondent No.7/6) and Dr. Swargajyoti Das, Associate Professor, Regional Dental Col lege, Guwahati. The name of the respondent No.6/7 was proposed by one Dr. B.R. B huyan and seconded by Sri Himangshu Medhi. They are the members of University Co urt. It was by the said procedure, the respondent No.7/6 was elected/nominated t o the Dental Council of India. 19. The grievance of the petitioner is that the said respondent No.7 /6 already having contested the election could not have been nominated/elected t o the Dental Council of India. It is the case of the petitioner that, but for th e withholding of the said fact from the Gauhati University, it could not have el ected/nominated the respondent No.7/6 to the Dental Council of India. 20. In the counter affidavit filed by the Gauhati University, it has been stated that the University did not have any knowledge of contesting the el ection by the respondent No.7/6. However, it has been stated that he was elected /nominated to the Dental Council of India as per the provisions of Section 3(d) of the Dentist Act, 1948. 21. Section 3(d) of the said Act makes provisions for election/nomin ation of one member from each University established by law in the stated which grants recognized dental qualification. The issue that falls for consideration o f this Court is as to what would have been the position, if it had been made kno wn to the University that the respondent No.7/6 seeking nomination/election to t he Dental Council of India was also a contesting candidate in the regular electi on. As stated in the counter affidavit filed by the Gauhati University, the said fact was not known to it. Even the pendency of the first writ petition being WP (C) No.177/2012 was also not known to the University. Pursuant to the direction issued in WP(C) No.177/2012, once results of the election are declared and if th e respondent No.7/6 is found to have been elected, he cannot continue to remain as elected member and at the same time nominated member of the University. That apart, the University authority will also have to consider as to what would have been the position, if it had been made to known to it that the respondent No.7/ 6 had already contested the election, results of which were waiting. 22. Mr. Murarka, learned counsel for the respondent No.7/6 has quest ioned about the very locus-standi of the writ petitioner in filing the writ peti tions and/or questioning the election/nomination of the said respondent by the U niversity. In this connection, he has placed reliance on the decision of the Ape x Court reported in 1987 (Supp) SCC 512 (Gujrat University -Vs- N.U. Rajguru and others), so as to contend that dispute relating to election cannot be gone into by the High Court exercising its writ jurisdiction and that if the situation pr ovides alternative remedy, the same should be pursued before invoking the writ j urisdiction. 23. Needless to say that ratio of any decision will have to be under stood in the background of the fact situation involved in each and every case. I n the decision referred to above, by enacting Section 58 of the Gujrat Universit y Act, 1949, the Legislature had constituted a Forum for the determination of th e disputes in respect of matters specified therein. In the said case, it was con tended that the election of 28 members was bad in law. The respondent teachers o f the University duly participated in the election, but before declaration of th e results of the election, they filed a writ petition seeking the relief of sett ing aside the election of 28 members and for a direction to hold fresh election. 24. Unlike the aforesaid case, in the instant case the issue is as t o whether the returning officer could withhold the declaration of results indefi nitely or should declare the results forthwith as contemplated in the regulation s referred to above. As has been held above, the complaints lodged by the contes ting party before declaration of results cannot constitute an election dispute. If the regulation requires declaration of results forthwith by the returning off icer, he has no other option, but to declare the results. Thereafter, if any par ty is aggrieved by the declaration of results, it will always be open for the sa id party to raise dispute to be adjudicated upon by the Central Government. In view of the above, the 2nd writ petition being WP(C) No.2482/ 25. 2013 stands disposed of, remanding the matter back to the Gauhati University for a fresh decision as to whether the election/nomination of the respondent No.7/6 would have been any material affect in view of the withholding of the fact of c ontesting the election and filing of the 1st writ petition being WP(C) No.177/20 12 and the exchanging of affidavits therein by the respondent No.7/6. Let the Un iversity take a fresh decision in the matter as expeditiously as possible, prefe rably within 01(one) month. Depending upon the outcome of the said fresh decisio n and also the results of the election now required to be declared in terms of t he direction contained in WP(C) No.177/2012, the future course of action in the matter shall govern. 26. g the parties to bear their own costs. Both the writ petitions are answered in the above manner, leavin