IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.167 of 2007 ------ Returning Officer-Cum-Principal, Homeopathy Central Council Election, R.B.T.S. Govt. Homeopathic Medical College and Hospital, Muzafarpur, P.S.-Sadar, District-Muzaffarpur. …. Respondent/ Appellant Versus 1. Munshi Prasad S/O Late Radhe Prasad resident of village + Post Office-Makanpur, Police Station-Gaya, District-Gaya. Petitioner-Respondent Ist Party. 2. The State of Bihar. 3. The Health Commissioner, Govt. of Bihar, New Secretariat, Patna. 4. The Deputy Director (Homeopath), Govt. of Bihar, Patna. 5. The Registrar, Bihar State Board of Homeopathic Medicine, Kadam Kuan, Patna-800003. 6. Deputy Advisor (Homeopath), Indian Red Cross Society, Building, Indian Red Cross Road, New Delhi. 7. Secretary, Homeopathy Central Council, New Delhi. Respondents/Respondents 2nd Set. ----------- For the appellant : Mr. Rajendra Prasad Singh, Senior Advocate Mr. Rajani Kant Pathak, Advocate For the respondent-State: Mr.Amresh Kumar Sinha, Junior Counsel to Government Pleader XV For the respondent no.5: Mr. Pravin Kumar Sinha, Advocate For the intervenors : Mr. Rajeev Roy, Advocate Mr. Amrendra Kumar Sinha No.1, Advocate ------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal -------- Dated, the 24th November, 2008. We heard the senior counsel for the appellant and Mr. Amrendra Kumar Sinha No.1, counsel for the intervenors in - 2 - I.A.No.1405/2007. The respondent no.1 has not chosen to appear despite service. 2. Dr. Munshi Prasad is enrolled on a State Register of Homoeopathy of Bihar. He challenged the election notice issued by the Returning Officer, Central Council of Homoeopathy (Election) which was published in daily newspaper “Dainik Jagran” in its edition of 07th November, 2006 by which election schedule was published for holding the election of three members for the Central Council of Homoeopathy from the State of Bihar, (the territory being that of erstwhile Bihar prior to its reorganization). Inter alia, he set up the ground that voter list has not been revised and updated. In the writ petition, he alleged that he made representation to the concerned authorities raising diverse deficiencies in the electoral list; similar representations were also made by few others, but without looking into those deficiencies, the election to the Central Council of Homoeopathy has been notified by the Returning Officer. The petitioner also raised the plea that State of Jharkhand having come into existence with effect from 15.11.2000, a Returning Officer of Bihar cannot hold election of Bihar and Jharkhand jointly. 3. The Returning Officer, who was impleaded as respondent no.6 (present appellant) filed counter affidavit in opposition to the writ petition on 03rd January, 2007. He stated in the counter affidavit that the Government of India in its order dated 05th October, 2006 has clarified that since after creation of the State of Jharkhand, no separate - 3 - register of Homoeopathic practitioners has been published in the State of Jharkhand, nor the register of the practitioners in the erstwhile State of Bihar has been bifurcated nor separately maintained, the election to the Central Council of Homoeopathy be conducted for the States of Bihar and Jharkhand. He emphasised that the procedures prescribed in the Homoeopathy Central Act, 1973 (For short, „the Central Act‟), the Bihar Development of Homoeopathic System of Medicine Act, 1953 (for short, „the State Act‟) and the Homoeopathy Central Council Election Rules, 1975 (for short, „the Central Election Rules‟) have been followed and election notice has been issued in conformity with these statutory provisions. 4. The Single Judge noticed the diverse provisions of the State Act, and the Central Election Rules and held that up-to-date electoral list having not been prepared, the proper election was not possible. According to the Single Judge, although the date of electoral list is mentioned as 30th June, 2006, but the said list, has been prepared much before the bifurcation of the State of Bihar and only some names have been added and based on that the electoral list cannot be said to be proper. He, accordingly, quashed and set aside the election notice dated 07th November, 2006 and all subsequent processes in respect to the concerned election. The Single Judge directed the Registrar, Bihar State Homoeopathic Medicine Board to prepare the register in accordance with the provisions of law and on that basis publish a fresh electoral roll and only thereafter elections - 4 - should be held. It is this order passed by the Single Judge on 05th January, 2007, that is impugned in the present Letters Patent Appeal. 5. The Constitution of Central Council is provided in Section 3 of the Central Act. It reads thus: “3.(1) The Central Government shall, by notification in the Official Gazette, constitute for the purposes of this Act a Central Council consisting of the following members, namely:- (a) such number of members not exceeding five as may be determined by the Central Government in accordance with the provisions of the First Schedule from each State in which a State Register of Homeopathy is maintained, to be elected from amongst themselves by persons enrolled on that register as practitioners of Homeopathy; (b) one member from each University to be elected from amongst themselves by the members of the Faculty or Department (by whatever name called) of Homoeopathy of that University: Provided that until any such Faculty or Department of Homoeopathy is started in at least seven Universities, the Central Government may nominate such number of members not exceeding seven as may be determined by the Central Government from amongst the teaching staff of medical institutions within India, so however, that the total number of members so nominated and elected under this clause shall in no case exceed seven; (c) such number of members, not exceeding forty percent of the total number of members elected under clause (a) and (b), as may be nominated by the Central Government, from amongst persons having special knowledge or practical experience in respect of Homoeopathy or other related disciplines: Provided that until members are elected under clause (a) or clause (b) in accordance with the provisions of this Act and the rules made thereunder, the Central Government shall nominate such number of members, being persons qualified to be chosen as such under the said clause (a) or clause (b), as the case may be, as that Government thinks fit; and references to elected members in this Act shall be construed as including references to members so nominated. (2) The President and the Vice – President of the - 5 - Central Council shall be elected by the members of the Central Council from amongst themselves in such manner as may be prescribed; Provided that for two years from the first constitution of the Central Council, the President and the Vice-President shall be nominated by the Central Government from amongst the members of the Central Council and the President and the Vice-President so nominated shall, notwithstanding anything contained in sub-section (1) of section 7, hold office during the pleasure of the Central Government.” 6. Section 4 of the Central Act provides for mode of election of the members of the Central Council. It reads thus: “4. (1) An election under clause (a) or clause (b) of sub-section (1) of section 3 shall be conducted by the central Government in accordance with such rules as may be made by it in this behalf. (2) Where any dispute arises regarding any election to the Central Council, it shall be referred to the Central Government whose decision shall be final.” 7. That the Principal R.B.T.S. Govt. Homoeopathic Medical College and Hospital, Muzaffarpur has been nominated by the Central Government as Returning Officer for holding election of the members to the Central Council of Homoeopathy from the State of Bihar is not in dispute. 8. Rule 3 of Central Election Rules provides for the persons who are entitled to vote for such election. It reads thus: “3. Persons entitled to vote- All persons whose names are enrolled on a State Register of Homoeopathy, shall be entitled to vote at the election of members under clause (a) of sub-section (1) of section 3.” 9. Rule 4 of these Rules provides for posting of copies of State Register of Homoeopathy and also for updating these registers. - 6 - Rule 4 is as follows: “4. posting of copies of State Register of Homoeopathy; (1) Copies of the State Register of Homoeopathy shall be posted at the office of the Returning officer and of the Board of the State concerned. (2) The register shall be brought up-to-date before posting and for this purpose, the Returning Officer shall give one month‟s notice to the Registrar (by whatever name called) of the Board concerned, who maintains the register in the State.” 10. Returning Officer has been empowered to hold election which is embodied in Rule 5 and it reads thus: “5. Returning officer to hold the elections- The Returning officer shall call upon persons enrolled on the State Register of Homoeopathy to elect such number of members, as is determined by the Central Government under clause (a) of sub-section (1) of section 3.” 11. Rule 6 provides for determination of questions relating to right to persons to stand for or to vote at that election. The said provision is as follows: “6. Questions relating to right to persons to stand for or to vote at election- if any question arises as to whether a person is or is not entitled to vote in the election or to stand for the election, the question shall be referred to the Returning officer who shall decide the same.” 12. Rules 7 to 21 provide for the entire procedure; right from fixation of date of election until the result of election. Rules 7 to 21 read thus: 7. Fixation of dates of various stages of election- The Returning officer shall appoint and shall notify in the official Gazette and in such other - 7 - manner as he thinks fit, the date, time and place for- (a) the receipt of the nomination papers and their scrutiny; (b) the dispatch of voting papers to the electors; (c) the poll; and (d) the scrutiny and counting of votes. 8. Nomination of candidates- Any person qualified to stand for the election under section 5 may be nominated as a candidate for election and such nomination shall be made by means of a nomination paper in Form 1 which shall be supplied by the Returning Officer to any elector who may apply for the same. 9. Nomination paper- (1) Each nomination paper shall be subscribed by two electors as proposer and seconder and shall contain a declaration signed by the person proposed signifying his consent to stand for the election. (1A) no elector shall subscribe, whether as proposer or as seconder, more than one nomination paper at the same election and, if he does, his signature shall be inoperative on any paper other than the one first delivered. (1B) Nothing in this rule shall prevent any candidate from being nominated by more than one nomination paper for the same election; provided that not more than four nomination paper shall be presented by or on behalf of any candidate or accepted by the Returning officer, (2) On receipt of each nomination paper, the Returning officer shall forthwith endorse thereupon the date and hour of receipt. (10) Rejection of nomination paper- A nomination paper which is not received before the date and time appointed in that behalf shall be rejected. (11) Scrutiny of nomination papers- (1) On the date and at the time appointed by the Returning Officer for the scrutiny of the nomination papers, the candidates and the proposer and the seconder of each - 8 - candidate may attend the office of the Returning Officer, who shall allow them to examination the nomination papers of all the candidates which have been received by him as aforesaid. (2)The Returning officer shall examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:- a) that on the date appointed for the scrutiny of nominations, the candidate does not possess a recognized medical qualification for standing election as such a candidate; b) that he is not enrolled on the State Register of Homoeopathy and does not reside in the State from which he stands for election; c) omitted d) that the nomination paper is not received by the Returning Officer before the appointed time and date; e) that the signatures of the candidate or the proposer or the seconder on the nomination paper is not genuine ; f) that the the proposer or the seconder is not entitled to vote at such an election g) that the signature of the proposer or the seconder is in violation to the provisions of the sub-rule (1A) of rule 9. 12. Withdrawal of candidature- (1) Any candidate may withdraw his candidature within seven days after the scrutiny of nomination papers by notice in writing signed by him and delivered to the Returning Officer. (2) A candidate who has withdrawn his candidature shall not be allowed to cancel the withdrawal. (3) The Returning Officer, shall, on receiving a notice of withdrawal and on being satisfied as to the genuineness of the notice of withdrawal under sub- rule(1), cause the notice to be affixed in some conspicuous place in his office. 13. Poll – (1) Where the number of candidates duly nominated is equal to or less than the number of members to be elected from the state concerned, the Returning Officer shall forth declare such candidates to be duly elected. - 9 - (2) Where the number of such candidates is less than the number of members to be so elected the Returning Officer shall commence fresh proceedings for the election of the remaining members to be elected under clause (a) of sub-section (1) of section 3. (3) Where the number of such candidates exceeds the number of members to be elected from the State concerned, the Returning Officer shall publish their names and addresses in the official Gazette and shall further cause their names to be entered in the voting papers in Form II. (4) If a poll is found necessary, the Returning Officer shall, thirty days before the date appointed therefore, send by (registered)* post to each elector a letter of intimation in Form IV together with a numbered declaration paper in Form III, a voting paper in Form II containing the names of the candidates in a alphabetical order and bearing the Returning Officer‟s initial or facsimile signature, a voting paper cover addressed to him (the Returning Officer) and an outer envelope also addressed to him. Provided that the voting paper and other connected papers may also be sent to any elector on his applying to the Returning Officer for the same before the date appointed for the poll, if the Returning Officer is satisfied that the papers have not been sent to him. (5) An elector who has not received the voting and other connected papers sent to him by post or who has lost them or in whose case the papers before their return to the Returning Officer have been inadvertently spoilt, may transmit a declaration to that effect signed by himself, and request the Returning Officer not later than seven days before the date appointed for the poll to send him fresh papers and if the papers have been spoilt, the spoilt papers shall be returned to the Returning Officer who shall cancel them on receipt. (6) In every case in which fresh papers are issued, a mark shall be placed against the number relating to the elector‟s name in a copy of the State Register of Homoeopathy to denote that fresh papers have been issued. (7) Each elector shall have as many votes as there are members to be elected from that State, but shall give only one vote to any one candidate. (8) No election shall be invalid by reason of the non- - 10 - receipt by an elector of his voting paper. 14. Return of voting papers – Every elector desirous of recording his vote shall, after filling up the declaration paper and the voting paper according to the directions given in the letter of intimation, enclose the voting paper in the voting paper cover, stick up the cover, enclose the cover and the declaration paper in the outer cover addressed to the Returning Officer and send the outer cover by post at the elector‟s own cost to the Returning Officer or deliver it in person in the office of the Returning Officer so as to reach him not later than 5.00 P.M. on the date fixed for the poll and all envelopes received after that day and hour shall be rejected. 15. Endorsement by Returning Officer- On receipt of the envelopes containing the declaration paper and the closed cover containing the voting paper, the Returning Officer shall endorse on the outer envelope the date and hour of receipt. 16. Presence of candidates at the time of opening of outer envelope- (1) The Returning Officer shall open the outer envelope immediately after 5.00 P.M. on the date fixed for the poll at the place to which the envelopes are addressed to him. (2) Any candidate may be present in person or may send a representative duly authorized by him in writing to attend at the time the outer envelopes are opened. 17. Rejection of voting papers- (1) A voting paper cover shall be rejected by the Returning Officer, if :- (a) the outer envelope contains no declaration paper outside the voting paper cover; or (b) the declaration paper is not the one sent by the Returning Officer to the voter; or (c) the declaration paper is not signed by the elector; or (d) the voting paper is placed outside the voting paper cover; or (e) more than one declaration paper or voting paper cover have been enclosed in one and the same outer envelope; or (f) the State Registration number is not given by the elector in the declaration paper. (2) In each case of rejection the word “Rejected” shall be endorsed on the voting paper cover and also on the declaration paper, if any. (3) After satisfying himself that the electors have affixed their signature to the declaration papers, the - 11 - Returning Officer shall keep all the declaration papers in safe custody, pending disposal, under rule 20. 18. Scrutiny & counting of votes- (1) The Returning Officer shall attend for the purpose of scrutiny and counting of the votes on the date and at the time and place appointed by him in this behalf. Provided the date so appointed shall not be later than there days from the date fixed for the poll. (2) All the voting paper covers, other than those rejected under rule 17 shall be opened and the voting papers taken out and mixed together and voting paper shall then be scrutinized and the valid votes counted. (3) A voting paper shall be invalid if :- (a) it does not bear the Returning Officer‟s initials or facsimile signature; or (b) the voter signs his name or writes any word or makes any mark on it, by which it becomes recognizable as his voting paper; or (c) no vote is recorded thereon; or (d) the number of votes recorded thereon exceeds the number of seats to be filled; or (e) there is uncertainty of the vote exercised. (4) Any candidate may be present in person or may send a representative duly authorized by him in writing to watch the process of counting. (5) The Returning Officer shall show the voting papers, if requested to do so, to the candidate or their authorized representatives at the time of scrutiny and counting of votes. (6) If any objection is made to any voting paper on the ground that it does not comply with the specified requirements or to any rejection by the Returning Officer of a voting paper, it shall be decided at once by the Returning Officer. (7) The Returning Officer shall nominate such number of scrutineers as he thinks fit who shall be Gazetted Officers of the Government. 19. Declaration of results- (1) When the counting of the votes has been completed, the Returning Officer shall draw up a list of candidates in the order of highest votes polled by each candidate and shall declare candidates successful in that order according to the number of seats to be filled up and shall forthwith inform the successful candidates by post in such other manner as he thinks fit, of being elected to the Central Council. - 12 - (2) If, after the counting of the votes is completed, an equality of votes is found to exist between any candidates and the addition of one vote will entitle any of those candidates to be declared elected, the Returning Officer shall forthwith decide between those candidates by lot and proceed as if the candidate on whom the lot falls had received an additional vote. 20. Sealing and custody of election papers- Upon the completion of the counting and after the result has been declared by him, the Returning Officer shall seal up the voting papers and all other documents relating to the election and shall retain the same for a period of six months and he shall not destroy or cause to be destroyed the records even after six months without the previous concurrence of the Central Government. 21. Result of election – The Returning Officer shall intimate the name of the persons so elected to the Central Government who shall take steps to publish the names of the elected persons in the official Gazette.” 13. Since the controversy relates to the preparation of electoral roll, in our view, rule 3 and rule 6 are very important. All persons whose names are enrolled on a State Register of Homoeopathy are entitled to vote at the election of members under clause (a) of sub-section (1) of Section 3. We are concerned with the election of members under Clause (a) of sub-section (1) of Section 3. It is, thus, seen that persons whose names are enrolled on a State Register of Homoeopathy constitute the voters for the election of members under Clause (a) of sub-section (1) of Section 3. The provisions relating to State Register of Homoeopathy are contained in the State Act. Section 22 thereof provides for registration which is as follows: - 13 - “22. Registration.- (1)Every person who passes a qualifying examination under Section 31 or 32 shall be entitled to have his name entered in the register. (2) Notwithstanding anything contained in sub- section (1), every person- (i) whose name has been entered in the list prepared under Section 29 and who proves to the satisfaction of the Registrar that he has passed the matriculation examination or any equivalent or higher examination and has been practicing as a whole time or part time practitioner of the homeopathic system of medicine for a period of not less than three years on the first day of January, 1954; or (ii) who, in the opinion of the Board, is a fit person to be entered in the register by virtue of his eminent position as a whole time or part-time practitioner of the homeopathic system of medicine for a period of not less than three years on the first day of January, 1954, and who has applied for the registration of his name in the register before such date as may be notified in this behalf by the State Government in the official Gazette, shall be entitled to have his name entered in the register. (3) Every person who is entitled to be registered under sub- section (1) or (2) and who applies for the registration of his name shall be liable to pay twenty-five rupees as registration fee. (4)