SUPREME COURT OF INDIA
ANANGA UDAY
SINGH DEO
Vs.
RANGA NATH MISHRA & ORS.
12/10/2001
(CJI, R.C. Lahoti & Ashok Bhan)
Appeal (civil) 6658 of 2000
JUDGMENT
Ashok Bhan, J.
2. Brief facts leading to the points raised in this appeal are as follows:-
The President of India issued a notification, which
was published in the Gazette of India on 30th May, 1998, calling upon the
Members of the Electoral College of some of the States to elect Members to the
Rajya Sabha in accordance with the provisions of The Representation of the
People Act, 1951 (for short The Act). Pursuant to the aforesaid Presidential
Notification, the Election Commission of India by a Notification of the same
date called upon the elected Members of the Orissa Legislative Assembly to
elect three Members to the Rajya Sabha. In consultation with the Government of
Orissa, the Election Commission
also issued another notification appointing the Secretary of the Orissa
Legislative Assembly as the Returning Officer and the Joint Secretary of the
Orissa Legislative Assembly as the Assistant Returning Officer for the said
election.
(i) Filing of nomination papers Between 11.00 A.M. and 3.00 PM on any
day(other than public holidays) not later than
6.6.1998.
(ii) Scrutiny of nomination At 11.30 A.M. on papers 8.6.1998
(iii)Withdrawal of nomination Before 3.00 P.M. on papers 10.6.1998
(iv) Polling, if necessary Between 10.00 A.M. and 2.00 P.M. on 18.6.1998 in
Room No.54 of the Orissa
Legislative Assembly Secretarial Building.
4. Pursuant to the above notification, four persons, i.e., the appellant and
respondents 1 to 3 filed nomination papers. The appellants candidature was
sponsored by Biju Janata Dal (hereinafter referred to as BJD) and that of
respondents 1 to 3 was sponsored by the Indian National Congress Party
(hereinafter referred to as The Congress).
5. On 6th June, 1998, the Returning Officer published a list of nominated
candidates indicating the names of the aforesaid four persons. After scrutiny
of nomination papers, the Returning Officer issued a list in Form No.4 on 8th
June, 1998 indicating therein that the aforesaid four persons were the validly
nominated candidates for the election to the Rajya Sabha, 1998 by the elected
members of Orissa Legislative Assembly. After the time for withdrawal was over
on 10th June, 1998 and none of the candidates had withdrawn his candidature,
the Returning Officer issued the list of contesting candidates indicating the
aforesaid four names and the political parties which sponsored their
candidature.
6. The polling took place on 18th June, 1998 in which the candidates polled the
following value of votes (value of each vote being assessed at 100).
1.Ananga Vijay Singh Deo (appellant) - 3500 2.Ranga Nath Mishra (Respondent
No.1) – 4000
2..Rama Chandra Khuntia (Respondent No.2)- 4000
3.Manmath Das (Respondent No.3) – 2700
__________
Total 14200
_________
7. The Orrisa Legislative Assembly has got 147 members and it seems from the
aforesaid that in all 142 members had validly cast their votes in the election
held on 18th June, 1998. In view of the total valid votes tendered, as per
calculation, a person having polled votes valued at 3551 or more could be
declared elected. As Respondent No. 1 and Rama Chandra Khuntia, Respondent No.
2, got 4000 value of votes each in their favour, they were declared elected in
the first round, leaving Ananga Uday Singh Deo, appellant and Manmath Das,
respondent No.3 for the subsequent rounds. The Returning Officer transferred
the excess votes polled by Respondent No. 1 and Respondent No. 2, Rama Chandra
Khuntia as per the second preference in favour of respondent No.3
Manmath Nath Das. As a result, 444 value of votes were transferred from
Respondent No. 1 and 444 value of votes were transferred from Rama Chandra
Khuntia. After such transfer, the value of votes polled by Manmath Nath Das
stood at 3588. This having exceeded the cut off point i.e., 3551 value of
votes, respondent No.3 was declared elected. The appellant could not get any
more vote in the second round. Thus, the value of votes polled by him remained
at 3500, which was less than the cut off number, and, therefore, could not be
elected.
8. The appellant challenged the election of respondent nos.1 and 3 on the
following grounds :-
4. On the aforesaid pleadings, it was prayed that the election of Respondent
No. 1 be declared as void and consequently to declare the appellant to be duly
elected. In the alternative, it was prayed to declare the election of Manmath
Nath Das, respondent No.3, to be void and consequently to declare the appellant
as elected. Prayer was also made to allow inspection and counting of all used
ballots and to call for all other relevant documents regarding account of
ballots.
5. Respondent No.1 in his written statement challenged the maintainability of
the election petition in view of the provisions of Section 81 and 82 of the
Act. It was stated that as no cause of action had arisen, the election petition
was liable to be dismissed as no ground under Sections 100 and 101 of the Act
had been made out to set aside the election. Each of the grounds taken by the
appellant to set aside the election were specifically controverted. It was
denied that the Returning Officer had acted in violation of provisions of law
in issuance of the validly nominated candidates on 6th June, 1998 as alleged in
the petition.
6. Allegations that respondent No.1 sat in the Office of the Chief Minster in
the Assembly premises and every member of the Assembly was instructed by the
Chief Minister to cast votes in the manner as per his direction were denied. It
was stated that respondent No.1 did not carry on any canvassing within the
prohibited area of the polling. It was also stated that respondent No.1
absolutely had no knowledge about the Chief Minister issuing any instructions
to any M.L.A. from his office room in the Assembly premises. He did not meet
the Chief Minister on 18th June, 1998 in his office room or elsewhere until the
entire process of counting of votes was over. That the office of the Chief
Minister in the Assembly premises is in the ground floor of the building and
quite at a distance from the place of polling, i.e., Room No.54 which is in the
first floor of the building. It was denied that respondent No.1 was
disqualified to be
member of the Parliament in view of the alleged constitutional bar under
Article 124 (7) of the Constitution. He gave four examples where person holding
offices of the Judge in the High Court and Supreme Court had been elected as
Members of the Legislative Assembly as well as the Parliament.
7. It was denied by respondent No.1 that there was any irregularity in the
counting and transfer of votes and drew the attention of the Court to Article
80 (4) of the Constitution. It was submitted that the appellant having secured
votes valued at 3500, which was less than the required value of votes of 3551,
had rightly been declared as not elected. The procedure followed by the
Returning Officer was in accordance with law and, therefore, the declaration of
result in Form No.23B was not vitiated for any illegal manipulated entries as
alleged by the appellant. That the transfer of surplus votes from him as well
as from respondent no.2 in favour of respondent No.3 was in accordance with
law.
8. That upon respondent No.1 having been invited by the President of the Indian
National Congress to accept the sponsorship of her party to become a Member of
the Rajya Sabha, he filed his nominations. The rules and the bye-laws of the
Indian National Congress could not be utilized by the appellant to seek his
disqualification. It was denied that he had been imposed by the Central
leadership of the Congress on the Pradesh Congress Committee of the State of
Orissa. Allegation that Shir Janki Ballave Patnaik who was then the Chief
Minister of Orissa had prepared a master plan for his (Ranga Nath Mishras)
election and indulging in cross-voting, horse-trading, etc. was denied.
Maintainability of the aforesaid grounds to challenge the election was
questioned in the absence of material facts pleaded in the election petition.
9. Rama Chandra Khuntia, respondent No.2 also filed his written statement,
though no prayer had been made for setting aside his election. He also denied
the correctness of the grounds for challenging the election of respondent nos.1
and 3.
10. Manmath Nath Das, respondent No.3, in his
written statement raised the preliminary objection regarding maintainability of
the election
petition and stated that the appellant had no cause of action to file the
petition. That the election petition was bad for non-joinder of necessary
parties. The allegations regarding presence of Janaki Ballave Patnaik and
Respondent No. 1, in the office of the Chief Minister inside the Assembly
premises to compel each and every Member of the Orissa Legislative Assembly for
casting their votes as per the instruction of the Chief Minister and the
allegation of written tokens given by the Chief Minister indicating the
preferences to be endorsed in the ballot papers were denied. It was prayed that
the appellant be put to strict proof thereof. With regard to transfer of votes
in his favour, respondent No.3 stated that the same was done in accordance with
rules and the
declaration of result consequent upon such transfer of votes was in accordance
with law.
11. Respondent No.4 also filed his written statement and controverted the facts
alleged in the election petition. He submitted that the filing of nominations,
crutiny of nominations and counting of votes were regulated under the
provisions of the Constitution of India, the Act and the Rules made thereunder,
the Registration of Elections Rules, the Parliament (Prevention of
Disqualification) Act, and the Prohibition of Simultaneous Membership Rules. He
further submitted that the allegation with regard to the delay in supplying the
documents was not correct. There was no irregularity or illegality in declaring
the validly nominated candidates as the same was done in accordance with law on
8.6.1998.
12. From the above pleadings, the following issues were framed at the trial of
the election petition:-
(2) Whether the written statements of the respondents are in accordance with law?
(3) Whether respondent No.1 Ranganath Mishra is qualified to contest election to Parliament, and whether Article 124 (7) of the Constitution of India, 1950 constituted a bar for such contest, and whether his nomination was improperly accepted?
(4) Whether there was any cross-voting by horse-trading of opposition votes?
13. The appellant examined five Members of the Orissa Legislative Assembly in
addition to himself as witnesses in support of his case. Respondent Nos.1, 3
and 4 examined themselves as witnesses in support of the respect of the case
put forth by them.
14. Issue No.1 was decided in favour of the appellant. It was held that the election petition, as laid, was maintainable. Issue No.2 was decided in favour of respondents and it was held that the written statements of the respondents were in accordance with law. Issue No.3 was decided in favour of respondent o.1. It was held that Article 124 (7) of the Constitution of India did not constitute a bar on a retired Judge of the High Court or the Supreme Court from contesting the elections and therefore nomination of respondent No.1 had been validly accepted. Issues Nos. 4 & 5 were also decided in favour of the respondents. Issue Nos.1 and 4 are interlinked. Respondents in their written statement had taken the objection that the petition was not maintainable as it did not disclose the cause of action and also lacked in material facts and material particulars; that the petition was not filed in conformity with section 83 of the Act.
15. Election of Respondent No.1 had been challenged on the grounds that respondent No.1 being a former Judge and Chief Justice of India was debarred from contesting the election in view of the bar created by Article 124 (7) of the Constitution of India. Respondent No.1 not being a congressman a whip could not be issued by the congress party to its members to vote in his favour and that Shri J.B.Patnaik the then Chief Minister of Orissa while sitting in his office alongwith respondent No.1 in the ground floor which was within 200 yards of the polling station called the congress MLAs and issued instructions to cast their votes in the manner indicated by J.B.Patnaik. Shri J.B.Patnaik planned for cross voting and induced respondent No.1 to indulge in horse trading by appropriating the opposition votes by which the congress could win all the three seats.
16. Election of Respondent No.3 was challenged on the ground of wrong procedure
adopted in the counting of votes. According to the appellant afterdeclaring
respondent Nos. 1 & 2 elected, they having secured more votes than the
minimum quota required, only two candidates having being left in the arena,
further, counting should have been carried under rule 81(2) and not under Rule
79.
17. Under Issue No.1 & 4 the only point to be considered is whether the appellant had disclosed material facts and material particulars of the corrupt practice indulged in by Respondent No.1 in securing the votes and if not so to what effect. In so far as the other grounds of challenge to the election of respondent No.1 is concerned, the same have not been pressed in this case and left open for some future case. In so far as the procedure adopted in counting of votes, the same would be discussed under issue no.5.
18. Although in the Statement of Facts given in the petition, the fact that respondent No.1 had indulged in horse trading or inducing the voters to cross vote is not mentioned but in the grounds the following statement is made in para 14(iii) which reads as follows:
19. When Ranga Nath Mishra was imposed on OPCC from
Delhi, J.B.Patnaik prepared a master plan to prove his strength to Delhi. As
per its own
strength, Congress could only get 2 seats from out of the 3 existing vacancies.
J.B.Patnaik planned for a Cross-voting and induced Ranga Nath (Sonias
candidature) to indulge in horse-trading of appropriate number of opposition
votes by which Congress could win all the three seats.
20. Allegation made in this paragraph relates to a corrupt practice.Section 83
reads:
83.Contents of petition(1) An election petition
(a) shall contain a concise statement of the
material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the
petitioner alleged including as full a statement as possible of the names
of the parties alleged to have committed such corrupt practice and the date and
place of the commission of each such practice;
and
(c) shall be signed by the petitioner and verified in the manner laid down in
the Code of Civil Procedure, 1908 (5 of 1908) for the
verification of pleadings:
21. Provided that where the petitioner alleges any corrupt practice, the
petition shall also be accompanied by an affidavit in the prescribed form
in support of the allegation of such corrupt practice and the particulars
thereof.
(2) Any schedule or annexure to the petition shall also be signed by the
petitioner and verified in the same manner as the petition.
22. This section provides that the petition shall contain a concise statement
of the material facts and set forth full particulars of any corrupt practice
that the petitioner alleges including as full a statement as possible of the
names of the parties alleged to have committed such practice and the date and
place of the commission of such corrupt practice. It has to be verified in the
manner laid down in the Code of Civil Procedure and wherever the election
petitioner alleges any corrupt practice the petition shall also to be
accompanied by an affidavit in the prescribed form in support of the allegation
of such corrupt practice and particulars thereof. In the petition the
particulars of the corrupt practice of the allegation made, the names of the
parties alleged to have
committed such corrupt practice, the date and place of commission of corrupt
practice have not been given.
23. While leading evidence the petitioner produced besides appearing himself as
PW6, PWs 1, 2 3, 4 & 5. PWs 1,2 3,4 & 5 are the sitting Members of
Legislative Assembly of Orissa. They have deposed that respondent No.1 had met
them and tried to persuade and induce them by offering bribe to cross vote.
24. It has been held in a number of cases by this Court that the petition
lacking in material facts and material particulars as provided under section 83
is required to be dismissed. Allegations of corrupt practice is a serious
allegation which entails serious consequence of disqualifying the candidate
from contesting the election for a period which may extend up to six years. The
charge of corrupt practice is to be proved like a criminal charge requiring the
standard of proof to be beyond reasonable doubt.
25. Shri P.N.Lekhi strenuously contended that a liberal and purposive
construction should be put on the pleadings to serve the larger purpose of
eradicating corruption from the electoral system of the country and not a
technical approach which would defeat the purpose of electoral reforms. As
against this, it is contended by Shri P.P.Rao, learned senior counsel appearing
for respondent No.1 that compliance with the provisions of section 83 is
mandatory. The charge of corrupt practice in election petition is to be proved
like a criminal charge and the standard of proof required is beyond reasonable
doubt. It can entail the serious consequences of disqualifying the candidate
from contesting the election in future for a certain period of time. That the
court below had erred in taking evidence on a point on which there were no
proper pleadings. This Court in Ram Sharan Yadav v. Thakur Muneshwar Nath
Singh (1984) 4 SCC 649, has taken the view that the charge of a corrupt
practice is in the nature of a criminal charge which if proved, entails a very
heavy penalty in the form of disqualification. Therefore, a very cautious
approach must be made in order to prove the charge of undue influence leveled
by the defeated candidate. It is for the party who sets up the plea of undue
influence to prove it to the hilt beyond reasonable doubt and the manner of
proof should be the same as for an offence in a criminal case.
26. After referring to the case law it was held by this Court:3. The sum and
substance of these decisions is that a
charge of corrupt practice has to be proved by convincing evidence and not
merely be preponderance of probabilities. As the charge of a corrupt practice
is in the nature of a criminal charge, it is for the party who sets up the plea
of undue influence to prove it to the hilt
beyond reasonable doubt and the manner of proof should be the same as for an
offence in a criminal case. This is more so because once it is proved to the
satisfaction of a court that a candidate has been guilty of undue influence
then he is likely to be disqualified for a period
of six years or such other period as the authority concerned under Section 8-A
of the Act may think fit. Therefore, as the charge, if proved, entails a very
heavy penalty in the form of disqualification, this Court has held that a very
cautious approach must be made in order
to prove the charge of undue influence levelled by the defeated candidate.
29. The maintenance of purity of elections is indeed essential but the court
must be clear in its approach and appreciate that the proof of commission of
corrupt practices must be clear, cogent, specific and reliable as the charge of
a corrupt practice is almost like a criminal
charge and the one who brings forth that charge has the obligation to discharge
the onus of proof by leading reliable, trustworthy and satisfactory evidence.
Election cannot be set aside on mere probabilities but only if the allegations
of the corrupt practice, as alleged in the
petition, are satisfactorily proved, which in the instant case is found
hopelessly wanting. In this case the pleadings are so vague and the evidence so
scanty,
unsatisfactory and unreliable, besides being partly inadmissible, that it is
not possible to connect the appellant, the returned candidate or his election
agent
with any of the corrupt practices alleged in the petition. The High Court
before invalidating the election and upsetting the verdict of the electorate,
in its zeal to maintain purity of elections, ignored not only the defects in
the pleadings in the election petition but also failed to
analyse the evidence in its proper perspective and even relied upon such evidence
as is not admissible in law. It has been informed that the High Court has not
framed any rule for trial of the election petitions. If that be so the Chief
Justice of the High Court is requested to look into
it and frame rules for proper trial of election petitions.
30. In a recent decision this Court in V.
Narayanaswamy v. C.P. Thirunavukkarasu, (2000) 2 SCC 294, after analysing the
entire case law on the subject has held that exercise of undue influence is
also deemed to be a corrupt practice. Under sub-section (2) of Section 123
undue influence means any direct or indirect interference or attempt to
interfere on the part of the candidate or his agent, or of any other person
with the consent of the candidate or his election agent, with the free exercise
of any electoral right. Material facts and material particulars certainly
connote two different things. Material facts are those facts which constitute
the cause of action. In a petition based on the allegation of corrupt practices
the cause of action cannot be equated with the cause of
action as is normally understood because of the consequences that follow in a
petition based on the allegations of corrupt practices. An election petition
seeking a challenge to the election of a candidate on the allegation of corrupt
practices is a serious matter; if proved, not only does the candidate suffer
ignominy, he also suffers disqualification from standing for election for a
period that may extend to six years. The Court summed up:-
31. It will be thus seen that an election petition is based on the rights,
which are purely the creature of a statute, and if the statute renders any
particular
requirement mandatory, the court cannot exercise dispensing powers to waive
non-compliance. For the purpose of considering a preliminary objection as to
the maintainability of the election petition the averments in the petition
should be assumed to be true and the court
has to find out whether these averments disclose a cause of action or a triable
issue as such. Sections 81, 83(1)(C) and 86 read with Rule 94-A of the rules
and Form 25 are to be read conjointly as an integral scheme. When so read if
the court finds non-compliance it has to uphold
the preliminary objection and has no option except to dismiss the petition.
There is difference between material facts and material particulars. While the
failure to plead material facts is fatal to the election petition the absence
of material particulars can be cured at a later stage by an appropriate
amendment. Material facts mean the entire bundle of facts, which would
constitute a complete cause of action and these must be
concisely stated in the election petition, i.e., clause (a) of sub-section (1)
of Section 83. Then under clause (b) of sub-section (1) of Section 83 the
election petition must contain full particulars of any corrupt practice. These
particulars are obviously different from material facts on
which the petition is founded. A petition levelling a charge of corrupt
practice is required by law to be supported by an affidavit and the election
petitioner is
obliged to disclose his source of information in respect of the commission of
corrupt practice. He must state which of the allegations are true to his
knowledge and which to his belief on information received and believed by him
to be true. It is not the form of the affidavit but its
substance that matters. To plead corrupt practice as contemplated by law it has
to be specifically alleged that the corrupt practices were committed with the
consent of the candidate and that a particular electoral right of a person was
affected. It cannot be left to time, chance or
conjecture for the court to draw inference by adopting an involved process of
reasoning. Where the alleged corrupt practice is open to two equal possible
inferences the pleadings of corrupt practice must fail. Where several
paragraphs of the election petition alleging corrupt
practices remain unaffirmed under the verification clause as well as the
affidavit, the unsworn allegation could have no legal existence and the court
could not take cognizance thereof. Charge of corrupt practice being
quasi-criminal in nature the court must always insist on
strict compliance with the provisions of law. In such a case it is equally
essential that the particulars of the charge of allegations are clearly and
precisely stated in the petition. It is the violation of the provisions of
Section 81 of the Act which can attract the application of
the doctrine of substantial compliance. The defect of the type provided in
Section 83 of the Act on the other hand can be dealt with under the doctrine of
curability, on the principles contained in the Code of Civil Procedure.
Non-compliance with the provisions of Section 83 may
lead to dismissal of the petition if the matter falls within the scope of Order
6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. Where neither the
verification in the petition nor the affidavit gives any indication of the
sources of information of the petitioner as to the facts
stated in the petition which are not to his knowledge and the petitioner
persists that the verification is correct and the affidavit in the form
prescribed does not suffer from any defect the allegations of corrupt practices
cannot be inquired and tried at all. In such a case the petition has to
be rejected on the threshold for non-compliance with the mandatory provisions
of law as to pleadings. It is no part of the duty of the court suo motu even to
direct furnishing of better particulars when objection is raised by the other
side. Where the petition does not disclose
any cause of action it has to be rejected. The court, however, cannot dissect
the pleadings into several parts and consider whether each one of them
discloses a cause of action. The petition has to be considered as a whole. There
cannot be a partial rejection of the petition.
32. As the entire case law has been discussed in V. Narayanaswamys case
(supra), we need not refer to other cases on the subject which were cited
before us at the bar. Counsel for the appellant had referred to the following
decisions to press the point that liberal and purposive construction should be
put on the pleadings in order to do substantial justice.
2. Administrator, Municipal Corporation v. Dattatraya Dahankar (1992) 1 SCC
361.
3. Shrisht Dhawan v. Shaw Brothers (1992) 1 SCC 534.
33. None of these judgments are applicable to the facts of the present case and
the law pertaining to the election petition in which the allegation of corrupt practices
have been made. Atma Ram Mittal v. Ishwar Singh Punia (supra) deals with a case
under the Rent Control and Eviction Act. Similarly, in Administrator, Municipal
Corporation v. Dattatraya Dahankar (1992) 1 SCC 361, this Court was
interpreting Section 127- A(2)(b) of the M.P. Municipalities Act, 1961,
regarding imposition of property tax. In the context of that case, it was
observed that the mechanical approach to construction is altogether out of step
with the modern positive approach. The ratio of the said case would have no
applicability to the present case. Likewise, in Shrisht Dhawan v. Shaw Brothers
(1992) 1 SCC 534, again the Court was dealing with a case under the Delhi Rent
Control Act, 1958. In view of the specific
provisions of the Representation Act regarding the pleadings and the standard
of proof required to prove the corrupt practices, the ratio of any of these
cases would have no applicability.
34. This apart we are in agreement with the finding recorded by the High Court on issue No.4. It is true that the congress had only 80 members in legislagtive assembly whereas it polled 107 votes i.e.27 more than its strength in the assembly. But this by itself does not mean that there was a cross voting due to any inducement on the part of respondent No.1. on facts it has not been proved that respondent No.1 or any other person with his consent or the consent of his agent had indulged in cross voting by horse trading. The finding recorded by the High Court that respondent No.1 was not sitting with J.B.Patnaik in his room when J.B.Patnaik gave instructions to congress MLAs to vote in a particular manner and that the office where J.B.Patnaik was sitting was within 200 yards of the polling station where the polling took place is also affirmed. Counsel for the appellant could not putforth any plausible argument to set aside the finding of the High Court on facts.
35. As already noticed, there was no pleading at all, except some vague
assertion in the grounds, with regard to the allegation of corrupt practice
relating to alleged bribery indulged by respondent No. 1. No issue had been
framed, as rightly none could be framed in that respect on the basis of vague
and incomplete pleadings. The learned designated Judge, however, permitted
evidence to be led during the trial by the appellant, relating to the
allegations of bribery. No such evidence could have been permitted to be led.
The learned designated Judge appears to have ignored salutary principles that
evidence can only be permitted to be led on a plea-properly raised and issue
framed. A designated Judge trying an election petition must be careful to see
that irrelevant, impermissible and inadmissible evidence is not allowed to
brought on the record. Let alone allowing evidence to be led, for which there
were no
pleadings, even respondent No. 1 was subjected to unnecessary cross-
examination on the allegations of bribery, which of course he stoutly denied.
The evidence led in the case was inadmissible and should have been excluded and
not allowed to form a part of the record. The designated Judge trying the
election petition appears to have lost control over the proceedings and
conducted the trial of the election petition in a manner not acceptable in law.
In so far as the allegations relating to the charge of horse trading and
bribery are concerned, we must in fairness to Mr. P.N.Lekhi, learned senior
counsel appearing for the appellant, record that he did not pursue this charge
before us any further.
36. Coming now to the last on issue No.5 it may be stated that Election to the
Rajya Sabha from Legislative Assemblies of the States as per Article 80(4) is
held under a system known as proportional representation by means of a single
transferable vote. The system of voting by secret ballot on the system of
proportional representation by means of the single transferable vote is adopted
from the Constitution of Eire. The object of introducing proportional
representation in these elections is to give each minority group an effective
share as per its strength.
37. The system of proportional representation by single transferable vote comes
into operation only if there is more than one candidate to be elected. The
election is held by multi member constituencies. All the candidates who compete
for the seats allotted to a constituency have their names printed on one ballot
paper. Each elector has only one vote in the sense that it will be capable of
electing one candidate only. But that vote will not be wasted in case the
candidate whom he wishes to elect has got more than the required number of
votes, called the quota. The elector is required to indicate his multiple
preferences by placing the figures, 1, 2 and 3 in order of preferences. The
surplus votes in the hands of the candidates declared elected are transferred
to the then candidates. The procedure of counting of votes is enumerated in
Rules 71 to 85 of The Conduct of Election Rules, 1961 (hereinafter referred to
as The Rules).
38. Rule 74 provides that the Returning Officer after rejecting the ballot
papers which are invalid arrange the remaining ballot papers in parcels
according to the first preference recorded for each candidate; count and record
the number of papers in each parcel and the total number; and credit to each
candidate the value of the papers in his parcel. Rule 76 provides for
ascertainment of quota. It provides that at any election where more than one
seat is to be filled, every valid ballot paper shall be deemed to be of the
value of 100, and the quota sufficient to secure the return of a candidate at
the election shall be determined by adding the value credited to all the
candidates and then dividing the total by a number which exceeds by one the
number of vacancies to be filled and then to add one to the quotient ignoring
the remainder, if any, and the resulting number is the quota. In simple words
it would work as
under:-
Total number of valid ballot papers +1 = Quota. Number of members to be elected
+1
Rule 78 provides that if at the end of any count or at the end of the transfer
of any parcel or sub-parcel of an excluded candidate the value of ballot papers
credited to a candidate is equal to, or greater than the quota, that candidate
shall be declared elected.
39. If any vacancy remains to be filled, then the
procedure required to
be followed is given in Rules 79, 80 and 81. Rules 79, 80 and 81 read
thus:-
79. Transfer of surplus. (1) If at the end of any count the value of the ballot
papers credited to a candidate is greater than the quota, the surplus shall be
transferred, in accordance with the provisions of this rule, to the continuing
candidates indicated on the ballot papers of that candidate as being next in
order of the electors preference.
(2) If more than one candidate have a surplus, the largest surplus shall be
dealt with first and the others in order of magnitude:
Provided that every surplus arising on the first count shall be dealt with
before those arising on the second count and so on.
(3) Where there are more surpluses, than one to distribute and two or more
surpluses are equal, regard shall be had to the original votes of each
candidate and the candidate for whom most original votes are recorded shall
have his surplus first distributed; and if the values of their original votes
are equal, the returning officer shall decide by lot which candidate shall have
his surplus first distributed.
(4) (a) If the surplus of any candidate to be transferred arises from original
votes only, the returning officer shall examine all the papers in the parcel
belonging to that candidate, divide the unexhausted papers into sub-parcels
according to the next preferences recorded thereon and make a separate
sub-parcel of the exhausted papers.
(b) He shall ascertain the value of the papers in each sub- parcel and of all
the unexhausted papers.
(c) If the value of the unexhausted papers is equal to or less than the
surplus, he shall transfer all the unexhausted papers at the value at which
they were received by the candidate whose surplus is being transferred.
(d) If the value of the unexhausted papers is greater than the surplus, he
shall transfer the sub-parcels of unexhausted papers and the value at which
each paper shall be transferred shall be ascertained by dividing the surplus by
the total number of unexhausted papers.
(5) If the surplus of any candidate to be transferred arises from transferred
as well as original votes, the returning officer shall re-examine all the
papers in the sub-parcel last transferred to the candidate, divide the
unexhausted papers into sub-parcels according to the next preferences recorded
thereon, and then deal with the sub-parcels in the same manner as is provided
in the case of sub-parcels referred to in sub-rule (4).
(6) The papers transferred to each candidate shall be added in the form of a
sub-parcel to the papers already belonging to such candidate.
(7) All papers in the parcel or sub-parcel of an elected candidate not
transferred under this rule shall be set apart as finally dealt with.
80. Exclusion of candidates lowest on the poll. (1) If after all surpluses have
been transferred as hereinbefore provided, the number of candidates elected is
less than the required number, the returning officer shall exclude from the
poll the candidate lowest on the poll and shall distribute his unexhausted papers
among the continuing candidates according to the next preferences recorded
thereon; and any exhausted papers shall be set apart as finally dealt with.
(2) The papers containing original votes of an excluded candidate shall first
be transferred, the transfer value of each paper being one hundred.
(3) The papers containing transferred votes of an excluded candidate shall then
be transferred in the order of the transfers in which, and at the value at
which, he obtained them.
(4) Each of such transfers shall be deemed to be a separate transfer but not a separate count.
(5) If, as a result of the transfer of papers, the value of votes obtained by the candidate is equal to or greater than the quota, the count then proceeding shall be completed but no further paper shall be transferred to him.
(6)The process directed by this rule shall be repeated on the successive exclusions one after another of the candidates lowest on the poll until such vacancy is filled either by the election of a candidate with the quota or as hereinafter provided.
(7) If at any time it becomes necessary to exclude
a candidate and two or more candidates have the same value of votes and are the
lowest on the poll, regards hall be had to the original votes of each candidate
and the candidate for whom fewest original votes are recorded shall be
excluded; and if the values of their original votes are equal the candidates
with the smallest value at the earliest count at which these candidates had
unequal values
shall be excluded.
(8) If two or more candidates are lowest on the poll and each has the same
value of votes at all counts the returning officer shall decide by lot which
candidate shall be excluded.
81. Filling the last vacancies.
(1) When at the end of any count the number of continuing candidates is reduced to the number of vacancies remaining unfilled, the continuing candidates shall be declared elected.
(2) When at the end of any count only one vacancy remains unfilled and the
value of the papers of some one candidate exceeds the total value of the papers
of all the other continuing candidates together with any surplus not
transferred, that candidate shall be declared elected.
(3) When at the end of any count only one vacancy remains unfilled and there
are only two continuing candidates and each of them has the same value of votes
and no surplus remains capable of transfer, the returning officer shall decide
by lot which of them shall be excluded; and after excluding him in the manner
aforesaid, declare the other candidate to be elected. Rule 79 comes into
operation in case a candidate or more than one candidate has received more
votes than the required quota. If at the end of any count the value of the
ballot papers credited to a candidate is greater than the quota, the surplus
shall be transferred in accordance with the provisions of this rule, to the
continuing candidates indicated on the ballot papers of that candidate as being
next in order of the electors preference. After working out the surplus votes
in order of preference in favour of the remaining candidates, the surplus votes
are transferred to the remaining candidates and added to the value of votes
polled by that candidate. In this exercise if any candidate reaches the
requisite quota, then he is declared elected.
39. If no candidate wins on transfer of the surplus votes obtained by him from
the surplus of votes from the candidate who is already declared elected, then
the provision of exclusion of candidates lowest on polled votes as provided
under Rule 80 comes into operation. The returning officer then excludes from
the poll the candidate lowest on the poll and distributes his unexhausted
ballot papers among the continuing candidates according to the next preference
recorded thereon. The process is continued till the total number of vacancies
is filled up. If even by this process the total number of vacancies are not
filled
up then Rule 81 comes into operation. Case put forth by learned counsel for the
appellant is that as only two candidates remained in the field after declaring
respondent nos. 1 and 2 elected and only one vacancy remained unfilled, then
the counting should have proceeded under Rule 81 (2) and not under Rule 79 as
has been done by the returning Officer since the appellant had polled more
first preference of votes in the first count, then respondent no.3. The
appellant should have been declared elected. The proposition put forth by the
counsel for the appellant is not acceptable. It goes against the scheme of
proportional representation by single transferable vote. As pointed out
earlier, each elector has only one vote in the sense that it will be capable of
electing one candidate only but that vote will not be wasted in case the
candidate whom he wishes to elect has got more than the required number of
votes, called the quota. As the elector is required to indicate his multiple
preferences his vote which is surplus in the hands of the elected candidate
gets transferred to
the next candidate. If the contention of learned counsel for the appellant is to
be accepted, then the surplus votes in the hands of respondent nos. 1 and 2
would never be counted. Rules 79 to 81 which are in consonance with the scheme
of proportional representation by single transferable votes provide that
firstly the surplus votes in the hands of elected candidates have to be
transferred under Rule 79. If on the transfer of surplus votes no candidate
reaches the quota, then the procedure provided under Rule 80 of exclusion of
candidates obtaining the least number of votes is to be followed. On his
exclusion his first preference are transferred to the remaining candidates in
order of preference indicated by the electors. If even by this process the
required number of seats are not filled and no candidate reaches the quota then
resort to be made to Rule 81.
40. Rule 81 envisages three situations. Firstly when the number of candidates
is reduced to the number of vacancies remaining unfilled. Sub-rule (1) of Rule
81 provides that in such situations the continuing candidates shall be declared
elected. Sub-rule (2) of Rule 81 operates in a factual situation when at the
end of any count only one vacancy remains unfilled and the value of papers of
one candidate exceeds, the total value of papers of all the continuing
candidates together with all the surplus not transferred, then that candidate
shall be declared elected. This sub-rule cannot be pressed into service in the
present factual situation. The value of votes in the hands of the appellant did
not exceed the value of votes of the remaining candidate together with the
transferred surplus votes. Sub-rule (3) of Rule 81 provides that when at the
end of any count only one vacancy remains unfilled and there are only two
continuing candidates and each of them has the same value of votes and no
surplus remains capable of transfer, the returning officer shall decide by lot
which of them shall be excluded; and after excluding him in the manner
aforesaid, declare the other candidate to be elected. In the present case the
returning officer after declaring respondent nos. 1 and 2 elected, they having
reached their quota resorted to the procedure provided in Rule 79. On transfer
of the surplus votes of respondents 1 and 2 in favour of the remaining
candidates, it was found that respondent no.3 had secured the required quota of
votes. Respondent nos.1 and 2 had surplus of 444 value of votes after obtaining
their required quota. Second preference in all these ballot papers was
indicated
in favour of respondent no.3. By transfer of the value of 444 votes each from
respondent nos. 1 and 2 in favour of respondent no.3 his value of votes came to
cross the required quota of value of votes. He had obtained 2700 value of votes
and by adding the surplus value of 888 to the value of votes, already obtained,
his total value of votes came to 3558. The value of votes of the appellant
remained static at 3500. Once respondent No.3 was declared elected after
following the procedure under Rule 79, the reference to the procedure provided
under Rule 80 and 81 was unnecessary. In our view, the returning officer
followed the correct procedure in counting the votes and declaring respondent
no.3 elected; he having polled the requisite quota of value votes.
41. Mr. P.N. Lekhi, learned senior counsel submitted that in the judgment under
appeal most of discussion has taken place regarding scope of Article 124 (7) of
the Constitution of India and whether it constituted a bar for contesting
election by respondent No.1. Learned counsel did not question the correctness
of the findings recorded by the High Court on issue No. 3 but went on to submit
that he was not giving up challenge to the findings on issue No. 3 but he was
not addressing any arguments to question the correctness of these findings
recorded by the High Court either. Thus, the challenge based on Article 124 (7)
which failed in the High Court in so far as respondent No. 1 is concerned was
also not pursued before us.
42. No other ground was urged by the learned counsel for the appellant.
43. In view of the above, we do not find any merit in this appeal and dismiss it with costs.