LALIT MOHAN PANDEY v. POORAN SINGH AND ORS

Citation: [2004] SUPP. 1 S.C.R. 737

Court: Supreme Court of India

Bench: V.N. KHARE, S.B. SINHA, S.H. KAPADIA

Case summary

LALIT MOHAN PANDEY v. POORAN SINGH AND ORS.pdf

Judgment text

LAUT MOHAN PANDEY v. POORAN SINGH AND ORS. APRIL 27, 2004 [V. N. KHARE, CJ. , S. B. SINHA AND S. H. KAPADIA, JJ.

] Panchayats: Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961--Section 237-Uttar Pradesh Zila Panchayats (Election ofAdhyaksha and Up-Adhyaksha and Settlement ofElection Disputes) Rules, 1994-Rules 33, 34, Clauses 3, 4, 5 and 6 ofthe Schedule-Constitution ofIndia, ·1950, Article 243C: Hare system-Single Transferable Votes Method/Proportional representation System-Applicability of · Three candidates contesting in an election-Appellant, first respondent and one B receiving six, five and one, first preference votes, respectively- Upon elimination ofB, Appellant andfirst respondent obtaining equal number of votes-None securing the quota-Returning Officer declaring the said office to be vacant-Justification of-Held: The object of the Act being to elect an Adhyaksha, construction of the rules should be made in such a manner which would not negate the same-An interpretation of the rules which would lead to election ofone ofthe candidates should be adhered to-- Hence, appellant having received the highest number of preference votes, should have been declared elected.

Election for the post of Adhyaksha-None of the candidates securing the quota-Returning Officer declaring the said office to be vacant-Election petition-Maintainability of-Held: A candidate has a right to question the correctness of the order of returning officer-Ifence election petition maintainable-Maxims- 'ubi jus ibi remedium '. Quota rule under Clause (3) of the Schedule-Requirement of-Held: Not mandatory-The other clauses of the Schedule envisage that for the purpose of achieving the ultimate result, adherence to quota rule not 737 lI 738 SUPREM~ ttouRT REPORTS [2004] SUPP. I S. C. R. necessary-Hence, the sole continuing candidate though not achieving the quota may be declared elected. Interpretation of statutes: Doctrine of purposive construction-Statute to be construed having regard to the legislative intent-Construction leading to manifest absurdity not to be preferred to (i'construction which fulfill the object and purport of the legislative intent. .

Legislative intent-Every clause of a section to be construed with reference to the context and other clauses thereof so that the construction put on a particular provision makes a consistent enactment of the whole statute. Words and phrases-'Continuing candidate', 'Excluded candidate'- Meaning of in the context of election laws. In an election. held for the post of Adhyaksha, Zila Panchayat in Uttaranchal, the appellant, the first respondent and one B got six, five and one, first preference votes respectively. Upon elimination ofB, the appellant and the first respondent obtained six votes each. The election was held on the basis of proportionate representation by means ofa single transferable vote . by ballot. The Returning rn:icer declared the said office to be vacant on the ground that both the contesting candidates received equal votes and also that none of them secured the quota which was mandatory in nature.

An election petition was filed before the District Judge, which was allowed. Respondent was successful in his appeal before the High Court. Hence the appeal. · · Allowing the appeal, the Court HELD: 1. The appellant had received the highest number of first preference votes and hence he should have been declared elected. (766-C, DI 2. 1. 'Panchayat' is an institution of self-governance at the village, intermediate and district levels. It is required to be constituted in accordance wi. th Part IX ofthe Constitution ofIndia. The Adhyaksha ofPanchayat at the district level is to be elected by and from amongst the elected members. The provisions providing for procedures for holding the election must be construed having regard to the necessity of establishing democracy at the grass-root L. M. PANDEYv. P. SINGH 739 . level, being a constitutional requirement. The State Act and the rules applicable therefor must, therefore, be interpreted having regard to the constitutional scheme.

(749-D, F) 2. 2. The election to the post of Adhyaksha of Panchayat at the district level is governed by the provisions ofSection 237 ofthe Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. Whereas the election of office by majority is the normal rule, a single transferable vote system was developed in Denmark and Britain and is known as Hare system, now known as the Hare-Clark electoral system. This is a type of proportional representation system. Under this system, electors vote by showing preferences for individual candidates. (749-F-H; 750-G) Law of Elections by Narendra Chapalgaonker, 2nd edition; Local Government Elections by Schofield, Fourth edition, referred to. 123 American Law Reports (1939), referred to. 2. 3. Every voter under the Hare system has a single vote. On the ballot paper, voter has to rank all or any of the competing candidates giving the~ preferences 1, 2, 3 and so on.

A quota is fixed which is the minimum number ofvotes which cannot be secured by more candidates than the number ofseats. When a candidate secures votes eqmll to this quota, he is declared elected. If a candidate receives more votes than the quota, then he is declared elected and his surplus votes are transferred to other candidates in proportion of second preference indicated in his ballot papers. After surplus votes ofall candidates are transferred, ifall seats are not filled in then candidate who has polled lowest number ofvotes, would be eliminated and are continuing (are not elected or eliminated). This process goes on till all seats are filled f, in. This system ensures actual use of maximum number ofvotes polled. Thus, the Hare system works on two princ nstruction available".

Wht:re to apply words literally would "defeat the obvious int~ntion of the legislation and produce a wholly unreasonable result": we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. . ·HOW SHOULD WE INTERPRET? p Interpretation of a provision as regards electoral process framed to make certain conditions, requires construction of principles having regard to the backdrop thereof. Hare Principle w. a~ made applicable '"'. ~en aJarge num~er fposts were required to be filled up. The authorities ayaila,ble as rega~ds the appiicability of said principle, some of which are ~oticed hereinbefore do not suggest that the said principles are applied in a c~se where the number. ofvoters are limited and only one post is to be filled up. It also appears that the Legislatures of different countries had laid down different procedures for holding elections . which necessarily would. depend upon the need of the electoral college.

The ·court cannot also ignore the fact,that questions have been raised as regards :. the suitability 'of the said. 'proceSS· iii ·elections involving illiterate masses. In L. M. PANDEY v. P. SINGH [SINHA, J. ] 761 some jurisdictions, as noticed, the Hare principle has also been declared unconstitutional. A continuing candidate has been defined to mean not elected and not excluded from the poll at any given time. The expression "at any given time", in our opinion, should mean at all point of times which in tum would mean that till that time when the results can be declared. Clause (3), of course, provides for a minimum quota but applicability thereof should not be stretched to all stages of election. Clause (4) as such does not speak ofquota.

It speaks ofdeclaration ofa candidate who gets larger number of first preference votes than the other and in case both get equal number of first preference votes, one candidate has to be excluded on whom the lot falls and the other candidate is required to be elected. By clause (5) two different situations have been taken care of: (i) If at the end of the first or any subsequent round, the total number of votes credited is equal to or greater than the quota; and (ii) When there is only one continuing candidate that candidate is declared elected. It is not conjunctive but disjunctive. A continuing candidate may, therefore, also be elected who might not be credited equal to or greater number of votes than the quota. Clause (6) provides for the formula as to how an exclusion can take place. ' Sub-clauses (a), (b) and (c} of Clause (6) are disjunctive although the expression 'and' has been used.

Cfause (6) again provides for exclusion by application of different formulae which would appear from the subsequent paragraph which is as follows: "If, when a candidate has to be excluded under clause (a) above, two or more candidates have been credited with the same number ofvotes and stand lowest on the poll, exclude that candidate who had secured the lowest number of first preference votes, and if that number also was the same in the case of two or more candidates, decide by lot which of them shall be excluded. " Sub-clause (a) of Clause 6 does not speak of a quota. Thus, when a H. candidate has to be excluded who up to that stage has been credited with the lowest number of votes, two or more candidates might have been credited with the same number of votes and they may stand lowest on the poll then one of the candidates has to be excluded who had secured the lowest number of first preference votes.

Only in the event, the first preference votes secured by both the candidates are the same then and then only the determination by the lot has to be taken for the purpose of exclusion. The illustration appended to the rules does not envisage such situation. Illustrations although are ofrelevance and have some value in the construction of the text of tlie sections but they cannot have the effect of modifying the language of the statute and they cannot either curtail or expand the ambit of the statute. In Shambhu Nath Mehra v. The State ofAjmer, AIR ( 1956) SC 404, the law has been stated in the following terms: . D "13. We recognise that an illustration does not exhaust. the full content of the section which it illustrate but equally it can neither curtail nor expand its ambit; and ifknowledge ofcertain facts is as much available to the prosecution, should it choose exercise due diligence, as to the accused, the facts cannot be said to be especially" within the knowledge of the accused.

This is ~ section which must be considered in a common sense way; and the balance of convenience and the disproportion of labour 'that would be involved in finding out and proving ce~i~ facts balanced . against the triviality of the issue at stake and the ease with w~ich the accused could prove them, are all matters that mus~ be taken into consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the b':'rden is on the prosecution an"d never shifts. " · Rules, if given the. af~rementioned meaning, in our opinion, would subserve the object of the Act and, 'thus, would fulfil the constitutional and statutory scheme. In the end, the result for ~hich an election is held, must be achieved. · · APPLICATION OFTHE RULE: · · In. UniversitY of Poona·(supra) a J~Judge Bench of this Court held: L. M. PANDEY v. P. SINGH [SINHA, J. ] 763 "I I.

Election by Proportional representation by means of a single transferable vote by ballot is often described as the Hare system of proportional representation named after the English Political reformer Thomas Hare. This system ofelection is based on a quota determined by the following formula. The total votes cast are divided by the number of seats to be filled plus one, and one is added to the quotient. If I 00,000 votes are cast and 4 seats are to be filled, divide by 5 to get a quotient of 20,000, then add I to get 20,001, which is the quota. A candidate receiving the quota of first-choice of votes is elected. Under this system electors express first, second, third or 'additional choices according to the number of candidates. An elector does not waste his vote. If the candidate for whom he has expressed · his choice, does not need his vote, the surplus votes are distributed in accordance with the indicated second choices among candidates whose quotas have not been filled.

If enough candidates are not elected by this process the candidate with the smallest number of choices is then excluded and his votes are distributed in the same way. This process ofexclusion or elimination goes on until enough candidates have filled their quotas or until the successive eliminations have left no more than enough to fill the vacancies. " (Underlining is ours for emphasis) Under the system, voters are required to express first, second, third or additional choices according tQ. the number of candidates. If the candidate, for whom a voter has expressed his choice, does riot need his vote, the surplus votes are distributed as per the second choice. Only when enough candidates are not elected by this process, the candidate with the smallest number of choice is eliminated and his votes are distributed in the same way for the next round. University ofPoona (supra) states that the process of elimination must go on.

This decision is an authority for two propositions (i) the process of exclusion or elimination goes on until enough candidates fill their quota, and (ii) until the successive eliminations leave behind one continuing candidate, which would be enough to fill vacancy. In Umesh Sharma v. State Election Commissioner, W. P. No. I021 (M/ B) of2003 disposed ofon 14th November, 2003, one of us (Kapadia, J. ) held: "We have given the facts of Poona University case (supra) for two reasons. Firstly, it indicates the manner in which votes should be counted under the system of Proportional Representation by means of single transferable vote by ballot. The case of Poona University (supra) was a case of counting of votes where one seat was to be filled. Secondly, the above facts in the case of Poona University (supra) show that difficulties in declaring results normally arise in cases where two or more continuing candidates secure equal number of votes. However, in our case, that is not the position.

The judgment of the Supreme Court in Poona University's case (supra) is relied upon by us because it explains the meaning of the words "Election by Proportional Representation by means of single transferable vote by ballot. " It also indicates that under the system of Proportional Representation by means of single transferable vote by ballot, the idea of Quota and the rule of Elimination are in-built. The judgment · ofthe Supreme Court in Poona University's case (supra) further shows that the rule of Elimination should be continuously applied till the candidates fill their quota or until successive eliminations leave behind one continuing candidate, which would be enough to fill the vacancy. " It may be true that in that case there was no question of tie and in that · view of the matter it was observed: "The object is to see that votes do not get wasted.

It is important to note that under the above system, votes would not get wasted because the transferred votes, which are carried forward from first count to the second count and so on, are added to the original votes. However, in case of tie, there might be a dead-lock. In our case, there is no such tie. Therefore, the Returning Officer was required to go down the line, try to ascertain whether any candidate fills the quota or apply the rule of Success. ive Elimination till one candidate remains to fill-in one vacancy. We may clarify that ifthere were two vacancies and if by rule of Elimination· two candidates would remain, then they could be declared elected even if there was no quota:" Despite the same the Court emphasized the need to see that by rule of elimination, the left over candidates in the fray are enough to fill vacancies, observing: "It ensures results of an election. The said system does not only rely upon quota. It also provides for an alternative.

This alternative contemplates rule of Elimination by which the remaining candidates would be sufficient to fill the vacancies. Secondly, it is important to note that elections under this system is by Proportional Representation . . by means of single transferable vote by ballot. " We may notice that a Special Leave Petition against the said decision of the High Court in Sagar Singh v. Umes. h Sharma and Ors. , (SLP(C) No. 22672/2003) has been dismissed by this Court by an order dated 12. 12. 2003. In Jaidrath Singh (supra) this Court did not have the occasion to consider these aspects of the matter. The decision does not contain detailed reasons. The principle of literal interpretation was applied therein without ( noticing the consequences therefor. It is interesting to note that the impugned judgment was delivered by Ghildiyal, J. on 30th September, 2003 wherein he relied upon Jaidrath Singh (supra).

He is also a party to the decision in Umesh Sharma (supra) which was delivered on 14th November, 2003. We have noticed hereinbefore that the Division Bench in Umesh Sharma (supra) has dealt with the legal position more elaborately wherein emphasis has been laid on the decision of University ofPoona (supra). Furthermore, the decision of University ofPoona (supra) having been rendered by a 3-Judge Bench, should be favoured in preference to the decision of Jaidrath Singh (supra) which has been rendered by 2-Judge Bench. There is no detailed examination of the principles and the constitutional scheme in the said judgment although University ofPoona (supra) had been referred to but the ratio of that decision had not been applied. WHETIIER TIIE ELECTION PETITION IS MAINTAINABLE: At the first flush it may appear that the elect~on petition was not maintainable as no result in the election had been declared.

The provisions of Rules 33 and 34 must be interpreted having regard to the maxim 'ubi jus ibi remedium'. An election dispute would be adjudicated upon by the election tribunal specially constituted for that purpose. A candidate may, having regard to the fact situation obtaining therein make a prayer that he himself or any other candidate has been duly elected in the said case. Once he makes· out a case of being entitled to obtain the aforementioned declaration, it goes without saying that he has a right to question the order of the Returning Officer in terms whereof he was not declared elected. A fortiorari he has also a right to question the correctness of the order of the Returning Officer as a result whereof he had not been declared elected. An election petition, therefore, would be maintainable. .. ' .

CONCLUSION: We are, therefore, ofthe opinion that the High Court committed an error in interpreting the statutory provisions layirig down procedures for declaration of result on the election of Adhyaksha Panchayat at district level. Applying the law as we have interpreted, the appellant should have been declared elected. · For the reasons aforementioned, we are of the opinion that in the instant case the appellant herein had received the highest number of first preference votes and in that view of the matter he should have been declared elected. The appeal is allowed. D. G. Appeal allowed.