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TMI Blog2006 (9) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... red as the elected President of the said Municipality. 3. General elections to the office of the councillors to constitute Anand Municipality in the State of Gujarat were held on 25th October, 2005. Out of total 42 councillors, 19 were elected as candidates sponsored by Bhartiya Janta Party (for short "the B.J.P") and the other 23 candidates were elected as independent candidates. On 29th October, 2005, the Collector of Anand District issued a notice in terms of Section 32 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "the Act") read with Rules 3 and 4 of the Gujarat Municipalities (President and Vice-President) Election Rules, 1964 (hereinafter referred to as "the Election Rules"), notifying the programme for election to the posts of President and Vice-President of the said Municipality on 8th November, 2005 at 1.00 P.M. in the Municipality Meeting Hall. At the meeting, conducted and presided over by the Resident Deputy Collector, nominated by the Collector and hereafter referred to as the Presiding Officer, out of 42 elected councillors, 38 were present. Two B.J.P. councillors did not attend the meeting on account of some resentment with the party leadershi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention to see that they were released on bail only after the General Meeting was over and the election results were declared and that their absence tilted the election results in favour of the candidates sponsored by the B.J.P. because both the said councillors were to vote for the candidate sponsored by the Vikas Manch and two of the B.J.P. councillors had already aired their grievances and had decided not to attend the meeting. It was averred that the police officials acted in a high handed and arbitrary manner at the behest of two local B.J.P. MLAs with the malafide intention to help B.J.P., the party in power in the state, and their official candidate to win the election. The stand of the writ petitioners was that all these facts were brought to the notice of the Presiding Officer, who, ignoring their protest, drew the lots and declared the result. At this juncture we may note that subsequently the writ petitioners were permitted to amend their petitions to incorporate the prayer for declaring respondent No. 1 as having been elected as the President. 6. Taking into consideration about a dozen circumstances, culled out in the impugned judgment, the High Court has come to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection law that the one who brings forth the charge of "corrupt practices" is under an obligation to discharge the onus of proof in this behalf by leading cogent, specific, reliable, trust-worthy and satisfactory evidence, which was wanting in the instant case. It is asserted that the election of the appellant having been set aside by the High Court on a mere probability that the two independent councillors would have voted in favour of the first Respondent, the impugned decision cannot be sustained on the touchstone of the dictum of this Court in Jamuna Prasad Mukhariya & Ors. Vs. Lachhi Ram & Ors. . Drawing support from the observations made by this Court in The Regional Manager & Anr. Vs. Pawan Kumar Dubey , and Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Ltd., Haldia & Ors. to the effect that the allegation of malice of fact demands proof of a high degree of credibility, learned counsel contends that in the absence of any cogent material, the High Court committed a manifest error of law in returning a finding of malafide against the police officials on the basis of a bare bald allegation of malafides. 8. Mr. Vakil, learned senior counsel appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice, Lord Diplock enunciated three grounds upon which an administrative action is subject to control by judicial review, viz. (i) illegality (ii) irrationality and (iii) procedural impropriety. While opining that "further development on a case by case basis may not in course of time add further grounds" he added that principle of "proportionality" may be a possible ground for judicial review for adoption in future. Explaining the said three grounds, Lord Diplock said: By "illegality" he means that the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it, and whether he has or has not, is a justiciable question; by "irrationality" he means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it; and by "procedural impropriety" he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislative i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to be subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote." 14. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of President and Vice-President. Rule 10 of the said Rules, which is of some relevance, reads as follows:- "Rule 10: Power to call meeting at postponed date. If at any meeting called for the election of the President, the election is not held for any reason whatsoever, the Presiding Officer shall have power to call the meeting on any other day." 18. There is no denying the fact that in the light of clear stipulation in sub-section 4 of Section 32 of the Act, because of equality of votes the election result had to be decided by draw of lots and this is what the Presiding Officer did. But, the moot question is whether the detention of the two councillors was such a trivial factor in the subject election, which could be overlooked by the Presiding Officer? It is manifestly clear from the material on record that he was made aware of the said development. In the light of some of the circumstances, viz., (i) after arresting councillors Anilbhai Patel and Meenaben Gohil at around 12.30 P.M., just half an hour before the scheduled time for elections, the police officers did not produce them before the Magistrate immediately, but took them around Anand town in the police van an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel. In Tata Cellular Vs. Union of India, this Court has observed that the judicial restraint has two contemporary manifestations, namely, one the ambit of judicial intervention and the other, the scope of the Court's ability to quash an administrative decision on its merits. Judicial review is not concerned with reviewing the merits of the decision in support of which the application for judicial review is made, but the decision- making process itself. Unless that restriction on the power of the Court is observed, the Court will, as opined in Chief Constable of the North Wales Police Vs. Evans , "under the guise of preventing the abuse of power, be itself guilty of usurping power", which is the case here. 20. In the instant case, admittedly both the candidates had got equal number of votes polled and the appellant was declared as elected on the basis of draw of lots, held as per the prescribed procedure. Admittedly, the controversy did not relate to counting of votes. Under the circumstances, the direction of the High Court that the votes of the two arrested councillors be treated as having been cast in favour of the first respondent, in our view, is based on pure spec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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