Holding

The High Court was justified in setting aside the election due to procedural impropriety, but it was not authorized to declare the respondent president by imputing the detained councillors' votes.

Summary

The Supreme Court examined a municipal election in Anand where two independent councillors were arrested minutes before the election of the President, preventing them from voting. The presiding officer, aware of the arrests, proceeded with the election, resulting in a tie and a draw of lots that declared the appellant president. The High Court, invoking Article 226, set aside the election on grounds of procedural impropriety, treating the detained councillors' votes as favouring the respondent and declaring him president. The Supreme Court held that the High Court was correct to set aside the election because the arrests were a relevant factor that should have led the presiding officer to postpone the meeting, making his decision perverse and irrational. However, the Court found the High Court erred in attributing the detained councillors' votes to the respondent, as that was speculative, and therefore set aside that portion of the order, directing a fresh election.

Issues considered

The propriety of the High Court's exercise of judicial review under Article 226 to set aside the municipal election.
Whether the presiding officer should have postponed the election in view of the detention of two councillors under Rule 10 of the Election Rules.
Whether the High Court could lawfully declare the respondent elected by treating the detained councillors' votes as cast for him.

Legislation cited

Constitution of Indias. Article 226
Gujarat Municipalities Act, 1963s. Section 32(4)

Subjects

Judicial reviewArticle 226Municipal electionProcedural improprietyPerverse decisionDetention of councillorsGujarat Municipalities ActRes ipsa loquiturDraw of lots

Judgment

A JAYRAJBHA! JAYANT!BHA! PATEL
\I.

AN!LBHAI JAYANT!BHAI PATEL AND ORS.

SEPTEMBER! I, 2006

B [K.G. BALAKRISHNAN AND D.K. JAIN, JJ.]

Constitution of India, 1950:

Article 226-Municipal election-Decision of Presiding Officer-
C Judicial review of-Held, when Court is satisfied that there is an abuse or
misuse of power, and its jurisdiction is invoked, it is incumbent on the court
to intervene-Gzy·arat Municipalities Act, 1963-s. 32.

Gujarat Municipalities Act, 1963:
D s. 32(4)-Municipality-Election of President-Two contestants-
Detention of two Councillors before election meeting-Presiding Officer
holding election-The two contestants getting equal number of votes pol/ed-
E/ection declared by draw of lots-High Court in writ petition setting aside
the election and declaring the defeated candidate as President on the ground
E that votes of two detained councilors would be treated as having been cast
in his favour-Held, detention of two Councillors just before few minutes of
election meeting was a relevant factor-Decision of Presiding Officer to go
ahead with the election meeting without considering whether to continue the
election meeting or to postpone it and call the meeting on some other day
in terms of r. / 0 is perverse and illegal warranting interference under Article
F 226-However, High Court not justified in declaring the defeated candidate
as President-Direction given to hold general meeting for election of
President-Gujarat Municipal (!'resident and Vice President) Election Rules-
r. JO-Constitution of India. '
Doctrine-Res ipsa loquitur-Applicability of
G
The Collector issued a notice under s.32 of the Gujarat Municipalities
Act, 1963 read with Rules 3 and 4 of the Gujarat Municipalities (President
and Vice President) Election Rules notifying the programme for holding
election to the posts of President and Vice President of Anand Municipality
884
H
JA YRAJBHAl.IAYANTIBHAI PATEL v.ANILBHAl.IA YANTIBHAI PATEL 885
•
on the notified date and time. There were 42 Municipal Councillors, out of A
whom 19 belonged to B.J.P. and 23 were independent, who had formed a group
called 'Anand Vikas Munch'. Two BJP Councilors did not attend the meeting
and two other Councillors had been arrested just before the election meeting.
Two Councillors offered their candidature for the post of President and each
got 19 votes. In view of equality of votes, the Presiding Officer, in terms of
s.32( 4) drew lots wherein the appellant was declared elected as President of B
the Municipality. The election was challenged under Article 226 of the
Constitution of India on the ground that the two Councillors had been arrested
at the instance of BJP just a few minutes bef~re the election meeting
intentionally to manoeuvre the election results. The High Court held that the
two Councillors were detained with the sole intention of preventing them from C
attending the meeting, and it set aside the election. The High Court further
held that since the two Councillors filed affidavits stating that they wanted to
vote for respondent no. I, their votes be treated as having been cast in his
favour; and consequently, declared respondent no. I as having been elected as
President of the Municipality.
D
In the appeal filed by the person elected as President in the election
meeting, it was contended that the Presiding Officer having acted strictly as
per the procedure pres.cribed in s.32 of the Act, the High Court ought not to
have exercised its extraordina.ry jurisdiction under Article 226 of the
Constitution; and that respondent No. I having lost the election in the draw E
of lots, High Court had no jurisdiction to declare him elected as President of
the Municipality.

Allowing the appeal in part, the Court

HELD: 1.1. It is manifest that the power of judicial review may not be
F .
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 G
generates in the operation oflaw or affects the individual or society. When a
Court is satisfied that there is an abuse or misuse of power, and its
jurisdiction ~s invoked, it is incumbent on the Court to intervene. It is
nevertheless, trite thst the scope of judicial review is limited to the deficiency
in the decision-making process and not the decision. (893"E-G; 894-AI
H
886 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
\
A Staie of U.P. & Anr. v. .!ohri Mal, 120041 4 SCC 714 and Rames/mar
Prasad & Ors. (Vii v. Union of India & Anr., 120061 2 SCC I, relied on.

Council of Civil Service Unions v. Minislerfor the Civil Service, 119841
3 All ER 935; Associaled Provincial Picture Houses ltd. v. Wednesbwy
Corpn., (1948)1 KB 223=1194712 All ER 680 and Greater Boston Television
B Corp. v. FCC. 444 F.2d 841, 851 (D.C. Cir. 1970), referred to.
Quamarul Islam v. S.K. Kanta and Ors., 119941 Supp. 3 SCC 5; .!amuna
Prasad Mukhariya & Ors. v. Lachhi Ram & Ors., 119551 1 SCR 608; The
Regional Manager & Anr. v. Pawan Kumar Dubey, [197613 SCC 334 and
Ajit Kumar Nag v. General Manager (P.!), Indian Oil Corporation Ltd., Haldia
C & Ors., [20051 7 SCC 764, cited.

Schwart:: 's Administralive Law (Third Edition), referred to.

1.2. On facts in hand, the High Court was fully justified in exercising
its power of judicial review and setting aside the election of the appellant.
D The detention of the two Councillors, a fEw minutes before the election meeting
was a relevant factor which ought to have been taken into account by the
Presiding Officer to decide whether to continue with the election or to
postpone it and call the meeting on some other day in terms of Ruic 10 of
Gujarat Municipal (President and Vice President) Election Rules. Failure to
E do so not only offends against procedural propriety, it makes his decision to
go ahead with the election meeting perverse and irrational, a facet of
unreasonableness, warranting interference under Article 226 of the
Constitution. 1894-E; 895-E-G I

Since the principle Res ipsa loquitur is squarely attracted on facts in
F hand, it is unnecessary to comment on the conduct of the police officials, which
in any case does not commend the Court.1895-H; 896-Af

2.1. However, 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 is based on pure speculation that they would have definitely voted
G for him. Admittedly both the candidates had got equal number ofvotes 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. Accordingly, the order of the High Court, declaring the
firsf respondent as the President of the Municipality is set aside. The
H Collector would reconvene the general meeting of the Municipality for the
Ji\ YRAIBHAIJAYANTIBHAI PATEL 1·. ANILBHAI JA YANTIBHAI PATELID.K.JAIN] 887
election of the President. 1896-E-G; 897-AI A
Tula Cellular v. Union of India, 119941 6 SCC 651, relied on.

Chief Cons/able of the North Wales Police v. Evans, 11982) 3 All.ER
141, referred to.
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4056 of2006.

From the Judgment and Order dated 23.2.2006 of the High Court of
.. Gujarat in S.C.A. Nos. 22379, 22385 and 22391 of2005 .

Shyam Diwan, Nikhil Goel, Amar Dave, Naveen Goel and Sheela Goel C
for the Appellant.

Sharad Vakil, l.H. Syed, Varinder Kumar Sharma, Shivangi, Hemantika
Wahi and Kailash Chand for the Respondents.

The Judgment of the Court was delivered by
D
D.K. JAIN, J. Leave granted.

2. The Appellant, arrayed as the first Respondent in three writ petitions
(Special Civil Applications No. 22379, 22385 and 22391 of2005 with Civil
Applications No. I2966 and I2967 of 2005), questions the legality of a common E
judgment and order dated 23rd February, 2006 rendered by a Division Bench
of the Gujarat High Court. By the impugned Judgment, election of the Appellant
as President of Anand Municipality has been set aside and Respondent No.
I, namely, Vijaybhai Haribhai Patel has been declared as the elected President
of the said Municipality.
F
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, I9 were elected as candidates sponsored by Bhartiya
Jania 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 G
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 I .00 P.M. in the Municipality Meeting Hall. At the H
-
888 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R. \.
~

A 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 leadership
and two independent councillors, namely. Anilbhai Patel and Meenaben Gohil
were unable to attend the meeting as they had been arrested by the police
B at about 12.30 P.M. on the date of meeting.
4. As per the Election Rules, after the term of the President and Vice-
President is determined at the meeting, the Presiding Officer is required to
invite nominations for elections to the said posts. Accordingly, the Presiding
Officer invited nominations. Two councillors offered their candidature for the ""'
c office of President. Election was held for the said post wherein 19 councillors
cast their votes in favour of the appellant and the remaining 19 councillors
cast their votes in favour of the said Vijaybhai Haribhai Patel. In view of
equality of votes, following the procedure laid down in Section 32 (4) of the
Act, the Presiding Officer drew lots and declared the Appellant elected as
D President of the Municipality with effect from 8th November, 2005 for a term
of 2 Yi years.

5. Being aggrieved, three councillors challenged the election of the
Appellant by means of the aforementioned three Special Civil Applications
under Article 226 of the Constitution of India, inter-alia, on the grounds that
E councillors Anilbhai Nathubhai Patel and Meenaben Pratapbhai Gohil were
respectively arrested in relation to an offence under the Copyrights Act and
for an offence under the Bombay Prohibition Act just a few minutes before
the election meeting at 1.00 P.M. on 8th November, 2005 with the sole object
to somehow prevent both of them from casting their vote at the elections for
F the posts of the President and Vice-President as the B.J.P. leadership was
unable to win over any of the 21 independent candidates, who had formed
a group under the banner of "Anand Shaher Vikas Manch" (for short "the
Vikas Manch") and had sponsored two independent councillors for the said
posts; the B.J.P. resorted to unfair means as well as abuse of the government
machinery by getting false F.l.R.s registered on 5th November, 2005. It was
G alleged that when the said two councillors were about to enter the meeting
hall at about 12.30 P.M. on 8th November, 2005, the police officers, arrayed
as respondents in the writ petitions, and their staff arrested the said councillors;
prevented them from entering the meeting hall; they were not produced before
the Judicial Magistrate till 5.00 P.M. with the malafide intention to see that '-
they were released on bail only after the General Meeting was over and the
H
.
.TA YRAJBHAIJA YANTIBHAI PATEL 1·. ANILBHAI JA YANTIBHAI PATEL[DKJAIN] 889
• election results were declared and that their absence tilted the election results A
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 B
i 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.

6. At this juncture we may note that subsequently the writ petitioners
were permitted to amend their petitions to incorporate the prayer for declaring
c
respondent No. I as having been elected as the President.

7. Taking into consideration about a dozen circumstances, culled out in
the impugned judgmei:it, the High Court has come to the conclusion that the
two councillors were detained with the sole intention of preventing them from D
attending the meeting convened for election of President and Vice-President
1 of the Municipality and has, thus, set aside the election of the Appellant.
Accepting the stand of the two councillors, as projected in the affidavits filed
by them that they wanted to vote in favour of the presidential candidate
sponsored by the Vikas Manch, the Court has directed that the votes of the
said councillors be treated as having been cast in favour of the first Respondent E
and has consequently declared him as having been elected as President of
Anand Municipality.

8. The appellant is, thus, before us.

9. Mr. Shyam Diwan, learned senior counsel appearing for the appellant, F
\ whose election as President has been set aside by the High Court, in the first
place, submitted that the Presiding Officer having acted strictly as per the
• procedure prescribed in Section 32 of the Act for the election of the President,
the High Court ought not to have exercised its extraordinary jurisdiction
under Article 226 of the Constitution of India. Referring to the procedure laid G
down in sub-section 4 of Section 32 of the Act, learned counsel would sui:Jmit
that the two candidates having got equal number of votes in their favour the
Presiding Officer had no option but to resort to draw of lots and declare the
result accordingly. It is, thus, urged that under the given circumstances his
decision to declare the election result cannot be categorised as arbitrary or
H
..
890 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R.

A irrational, warranting interference and therefore, the High Court was not •
justified in entertaining the writ petition and setting aside the election of a
duly elected President. On merits, learned counsel would submit that being
primarily in the nature of hearsay evidence, the High Court committed a
manifest error of law in relying upon the press reports and video recordings
to return a finding that the two councillors were detained with malajide
B intention to prevent them from casting their vote, particularly when there was
neither any specific pleading or allegation nor any evidence to the effect that
either the appellant or his party was instrumental in getting the two councillors
arrested. Placing reliance on Quamarul ls/am v. S.K. Kanta and Ors. 1, learned
counsel contended that the High Court has lost sight of the salutary principle
C of the election 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
D Respondent, the impugned decision cannot be sustained on the touchstone
of the dictum of this Court in Jamuna Prasad Mukhariya & Ors. v. lachhi
Ram & Ors. 2• Drawing support from the observations made by this Court in
The Regional Manager & Anr. v. Pawan Kumar Dubej', and Ajit Kumar Nag
v. General Manager (PJ), Indian Oil Corporation ltd., Haldia & Ors'. to
E 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.

F I 0. Mr. Vakil, learned senior counsel appearing for the first Respondent,
while supporting the decision of the High Court, has submitted that in the
light of the overwhelming evidence brought on record by the writ petitioners,
the decision of the High Court cannot be te1med as perverse warranting
•
interference by this Court. Learned counsel has contended that ir. the light
of the depositions of the two councillors in their affidavits, affirming that they
G
1. [ 1994) Supp. 3 sec 5.

2. [ 1995) 3 sec 608.

3. [19761 3 sec 334.

4. [2005J 1 sec 764.
JA YRA.IBHAIJA YANTIBHAI PA TEL v. ANILBHAIJA YANTIBHAI PA TEL [D.K. JAIN] 89 J
wou[d have voted in favour of the first Respondent, the findings recorded by A
the High Court in favour of the Respondent cannot be said to presumptuous
or without any basis. Defending the decision of the High Court in declaring
the said respondent as the elected President, learned counsel has urged that
the Court is fully competent to rectify the electoral process and grant full
redressal for the injustice meted out to the said respondent.
B
~· 11. Thus, the first question requiring consideration is as to whether on
the facts of the instant case, the High Court was justified in exercising its
power of judicial review and setting aside the election of the appellant?

12. Article 226 of the Constitution is designed to ensure that each and
every authority in the State, including the State, acts bonafide and within the C
limits of its power. However, the scope of judicial review in Administrative
matters has always been a subject matter of debate despite a plethora of case
law on the issue. Time and again attempts have been made by the Courts to
devise or craft some norms, which may be employed to assess whether an
administrative action is justiciable or not. But no uniform rule has been or can D
be evolved to test the validity of an administrative action or decision because
the extent and scope of judicial scrutiny depends upon host of factors, like
the nature of the subject matter, the nature of the right affected, the character
of the legal and constitutional provisions applicable etc. While appreciating
the inherent limitations in exercise of power of judicial review, the judicial
quest has been to find and maintain a right and delicate balance between the E
administrative discretion and the need to remedy alleged unfairness in the
exercise of such discretion.

13. Having said so, we may now refer to a few decisions wherein some
broad principles of judicial review in the field of administrative law have been F
evolved.

14. In Council of Civil Service Unions v. Minister for the Civil Service',
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 G
case basis may not in course of time add further grounds" he add.:!d that
principle of"proportionality" may b~ a possible ground for judicial review for
adoption in future. Explaining the said three grounds, Lord Diplock said:

5. [1984] 3 All ER 935. H
892 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A 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 er 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
B 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 instrument by which the tribunal's
jurisdiction is conferred, even where such failure does not involve any denial
C of natural justice.
15. The principle of "Wednesbury unreasonableness" or irrationality,
classified by Lord Diplock as one of the grounds for intervention in judicial
review, was lucidly summarised by Lord Greene M.R. in Associated Provincial
Picture Houses Ltd. v. Wednesbury Corpn 6• as follows:
D
" ... the court is entitled to investigate the action of the local authority
with a view of seeing whether it has taken into account matters which
it ought not to take into account, or conversely, has refused to take
into account or neglected to take into account matters which it ought
to take into account. Once that question is answered in favour of the
E local authority, it may still be possible to say that the local authority,
nevertheless, have come to a conclusion so unreasonable that no
reasonable authority could ever have come to it. In such a case, again,
I think the court can interfere."

16. In State of UP. & Anr. v. Johri Maf1, this Court has observed thu~:
F
"The scope and extent of power of the judicial review of the High
Court contained in Article 226 of the Constitution of India would vary
from case to case, the nature of the order, the relevant statute as also
the other relevant factors including the nature of power exercised by
the public authorities, namely, whether the power is statutory, quasi-
G judicial or administrative. The power of judicial review is not intended

6. (1948) I KB 223;[1947] 2 All ER 680.

7. [2004J 4 sec 714.

H
JA YRAJBHAI JAY ANTIBHAI PATEL v. ANILBHAIJAYANTIBHAI PATEL [D.K. JAIN] 893
to assume a supervisory role or don the robes of ihe omnipresent. The A
power is not intended either to review governance under the rule of
law or do the courts step into the areas exclusively reserved by the
suprema lex to the other organs of the State. Decisions and actions
which do not have adjudicative disposition may not strictly fall for
consideration before a judicial review court."
B
17. Recently in Rameshwar Prasad & Ors. (VI) v. Union of India &
Anr. '. wherein a proclamation issued under Article 356 was under challenge,
Arijit Pasayat, J. observed thus:

"A person entrusted with discretion must, so to speak, direct himself
properly in law. He must call his attention to matters which he is C
bound to consider. He must exclude from his ronsideration matters
which are irrelevant to what he has to consider. If he does not obey
those rules he may truly be said to be acting unreasonably. Similarly,
there may be something so absurd that no sensible person could ever
dream that it lay with in the powers of the authority. D
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." E
18. 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 p
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 action which is based on whoHy irrelevant
considerations or material; or excludes from consideration the relevant mate1 ial; G
,...,
or it is so absurd that no reasonable person could have arrived at it on the
given material, may be struck down. In other words, when a Court is satisfied
that there is an abuse or misuse of power, and its jurisdiction is invoked, it

s. [2006J 2 sec 1. H
894 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A is incumbent on the Court to intervene. It is nevertheless, trite that the scope
of judicial review is limited to the deficiency in the decision-making process
and not the decision.

19. The following passage from Professor Bernard Schwartz's book
Administrative Law (Third Edition) aptly echo's our thoughts on the scope
B of judicial review:
Ir,

"Reviewing courts, the cases are now insisting, may not simply
renounce their responsibility by mumbling an indiscriminate litany of
deference to expertise. Due deference to the agency does not mean
abdication of the duty of judicial review and rubber-stamping of
c agency action: [W]e must accord the agency considerable, but not
too much deference; it is entitled to exercise its discretion, but only
so far and no further."
Quoting Judge Leventhal from Greater Boston Television Corp. v. FCC',
he further says:
D
" ... the reviewing court must intervene if it "becomes aware .... that the
agency has not really taken a 'hard look' at the salient problems, and
has not genuinely engaged in reasoned decision-making ... "
20. Tested on the touchstone of the above principles, we are of the view
~. of judicial review and set aside the election of the appellant.
that on facts in hand the High Court was fully justified in exercising its power

21. Chapter III of the Act contains provisions relating to the President,
Vice-President etc. Section 31 stipulates that the Municipality shall be presided
over by a President, who shall be elected by the councillors from among
F themselves in the manner prescribed by the rules made by the State Government.
Section 32 deals with the election of President and Vice-President. Sub-
section (4) thereof provides that if in the election of the president or the vice-
president there is an equality of votes, the result of the election shall be
decided by lot to be drawn in the presence of the Collector or the officer
presiding in. such manner as the Collector or as the case may be, the officer
G may determine.
22. Election Rules lay down the procedure for election of President and
Vice-President. Rule 10 of the said Rules, which is of some relevance, reads
as follows:-
1-
9. 444 F. 2d 841, 851 (D.C. Cir. 1970)
,,..
H
)·
JA YRAJBHAI JA YANTIBHAI PATEL"- ANILBHAI JAY ANTIBHAI PA TEL [DK JAIN] 895
"Rule 10: Power lo call meeting at postponed date.-lf at any A
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."
'
23. 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 B
;..: 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 ~ware of the said development. In the light of
some of the circumstances, viz., (i) after arresting councillors Anilbhai Patel
c
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 and produced them before the Magistrate only at about 5.00 P.M., by
which time the elections were already held and the results were also declared; D
(ii) no circumstance brought on record by the police to show that it would
have been inexpedient to wait till the elections were over before effecting
arrest of Anilbhai Patel and Meenaben Gohil. Both the councillors are residents
of Anand and their co-accused in the respective offences were released by
the police officers themselves after arresting them on 5.11.2005; and (iii) there
was no circumstance to show that the two councillors would have escaped E
and avoided arrest if they were allowed to go inside the meeting hall for
voting at 1.00 P.M. and if they were not arrested till the meeting for electing
President and Vice-President was over. We have no hesitation in holding that
the detention of the two councillors, a few minutes before the election meeting
was a relevant factor which ought to have been taken into account by the F
•, Presiding Officer to decide whether to continue with the election or to postpone
it and call the meeting on some other day in terms of Rule 10. Failure to do
so not only offends against procedural propriety, it makes his decision to go
ahead with the election meeting perverse and irrational, a facet of
unreasonableness, warranting interference under Article 226 of the Constitution.
In this view of the matter, we are of the opinion that the High Court has not G
committed any error of law and/or jurisdiction in setting aside the election of
the appellant as President of the Anand Municipality.

24. Since we feel that the principle Res ipsa loquitur is squarely attracted
' (
on facts in hand, it is unnecessary to comment on the conduct of the police
H
896 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A officials, which in any case does not commend us.
25. The next question which remains to be considered is as to whether,
having set aside the election of the appellant, the High Court was justified
in declaring respondent no. I as the President?

B 26. It was strenuously urged by learned counsel for the appellant that
the first respondent having lost in the draw of lots, the High Court had no
jurisdiction to declare him elected as President of the Municipality. The
submission is that having set aside the election, the High Court, at best, could
have directed the Collector to hold a fresh election for the said post.

C 27. There is substance in the submission of the learned counsel. In Tata
Cellular v. Union of lndia' 0, 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
D 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 v. Evans'', "under the guise of
preventing the abuse of power, be itself guilty of usurping power", which is
the case here.
E
28. 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
F treated as having been cast in favour of the first respondent, in our view, is
based on pure speculation that they would have definitely voted for him. In
our opinion, the High Court has erred on this aspect of the matter and
therefore, to that extent the impugned judgment cannot be sustained.
Accordingly, the order of the High Court, declaring the first respondent as
G the President of the Anand Municipality is set aside.
29. In the result, the appeal partly succeeds and is allowed to the extent
indicated above, with a direction to the Collector to reconvene the general

10. [199416 sec 651.

H 11. [1982] 3 All. ER 141 at 154.
JA YRAJBHAI JAY ANTIBHAI PATE!. 1·. ANILBHAI JAY ANTIBHAI PATEL[D.K. JAIN] 897

meeting of the Municipality for the election of the President within two A
months of the receipt of copy of this order. In the facts and circumstances
of the case, there shall be no order as to costs.

R.P. Appeal allowed.

B