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CASE NO.:

Appeal (civil) 2717 of 2004

PETITIONER:

Lalit Mohan Pandey

RESPONDENT:

Pooran Singh & Ors.

DATE OF JUDGMENT: 27/04/2004

BENCH:

CJI, S.B. Sinha & S.H. Kapadia.

JUDGMENT:

J U D G M E N T

(@ S.L.P. (CIVIL) NO. 19748/2003)

S.B. SINHA, J :

Leave granted.

Application of 'Hare System' in Municipal Election is

the question involved in this appeal which arises out of a

common judgment and order dated 30.09.2003 passed by the

High Court of Uttaranchal at Nainital in A.O. No. 196 of

2003.

BACKGROUND FACTS:

An election was held for the post of Adhyaksha, Zila

Panchayat Champawat situated in the State of Uttaranchal.

The appellant, the first respondent and one Bhagirath Bhatt

contested therefor. The appellant got six first preference

votes; whereas the first respondent got five first

preference votes and the said Bhagirath Bhatt received one.

Upon elimination of Bhagirath Bhatt, the appellant and the

first respondent obtained six votes each. The election was

held on the basis of proportionate representation purported

to be by means of a single transferable vote by ballot.

By reason of an order dated 24.5.2003, the Returning

Officer declared the said office to be vacant on the

purported ground that both the contesting candidates

received equal votes as also on the ground that none of them

secured the quota which was said to be mandatory in nature.

An election petition questioning the said decision was

filed before the District Judge, Champawat, which was

allowed. Aggrieved by and dissatisfied therewith, an appeal

was filed thereagainst by the Respondent herein before the

High Court of Uttaranchal at Nainital which by reason of the

impugned judgment has been allowed.

Hence this appeal.

ELECTORAL PROCEDURE:

The election to the said post is governed by the

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provisions of Section 237 of the Uttar Pradesh Kshettra

Panchayats and Zila Panchayats Adhiniyam, 1961 (for short

'the Act'). The Act has been adopted by the State of

Uttaranchal. The rules known as Uttar Pradesh Zila

Panchayats (Election of Adhyaksha and Up-Adhyaksha and

Settlement of Election Disputes) rules, 1994 (for short 'the

Rules') were framed under the provisions of Section 237 of

the Act. Chapter IV of the Rules relates to election of

Adhyaksha. In terms of Rule 33, an election petition

calling in question the election of Adhyaksha or Up-

Adhyaksha may be presented to the Judge at any time within

30 days from the date of result of the election. Rule 34

provides for requirements to specify the ground (s) on which

the election petition of the returned candidate can be filed

which includes giving of a summary of the circumstances

seeking to justify the same. Rule 35 of the Rules enables

the election petitioner to claim for the following

declaration:-

"(a) that the election of the returned

candidate is void.

(b) that the election of the returned

candidate is void and that he himself or

any other candidate has been duly

elected."

CONSTITUTIONAL AND STATUTORY PROVISIONS:

Article 243C of the Constitution of India reads thus:

"243C. Composition of Panchayats.--(1)

Subject to the provisions of this Part,

the Legislature of a State may, by law,

make provisions with respect to the

composition of Panchayats;

Provided that the ratio between the

population of the territorial area of a

Panchayat at any level and the number of

seats in such Panchayat to be filled by

election shall, so far as practicable,

be the same throughout the State,

(2) All the seats in a Panchayat shall

be filled by persons chosen by direct

election from territorial constituencies

in the Panchayat area and, for this

purpose, each Panchayat area shall be

divided into territorial constituencies

in such manner that the ratio between

the population of each constituency and

the number of seats allotted to it

shall, so far as practicable, be the

same throughout the Panchayat area.

(3) The Legislature of a State may, by

law, provide for the representation--

(a) of the Chairpersons of the

Panchayats at the village level, in

the Panchayats at the intermediate

level or, in the case of a State

not having Panchayats at the

intermediate level, in the

Panchayats at the district level;

(b) if the Chairpersons of the

Panchayats at the intermediate

level, in the Panchayats at the

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district level;

(c) of the members of the House

of the People and the members of

the Legislative Assembly of the

State representing constituencies

which comprise wholly or partly a

Panchayat area at a level other

than the village level, in such

Panchayat;

(d) of the members of the

Council of States and the members

of the Legislative Council of the

State, where they are registered as

electors within\027

(i) a Panchayat area at the

intermediate level, in Panchayat at the

intermediate level;

(ii) a Panchayat area at the district

level, in Panchayat at the district

level.

(4) The Chairperson of a Panchayat and

other members of a Panchayat whether or

not chosen by direct election from

territorial constituencies in the

Panchayat area shall have the right to

vote in the meetings of the Panchayats.

(5) The Chairperson of--

(a) Panchayat at the village level

shall be elected in such manner as the

Legislature of a State may, by law,

provide; and

(b) a Panchayat at the intermediate

level or district level, shall be

elected by, and from amongst, the

elected members thereof."

Rule 38 provides for the procedure for holding

election. Rule 40 empowers the District Judge to pass a

final order on an election petition. Rule 43 specifies the

procedure in case of equality of votes. Rule 47 provides

for appeal.

Rule 26 of the Rules reads as under:

"After all the valid ballot papers have

been arranged in parcels according to

the first preference recorded for each

candidate, the Returning Officer shall

proceed to determine the result of the

voting in accordance with the

instructions contained in Schedule II to

these rules."

The relevant clauses of Schedule II read as under:

"(2) the expression "first

preference" means the number 1 set

opposite the name of any candidate, the

expression "second preference"

similarly means the number 2, the

expression "third preference" the

number 3, and so on;

(3) the expression "next available

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preference" means the second or

subsequent preference recorded in

consecutive numerical order for a

continuing candidate, preferences for

candidates already excluded being

ignored;

(4) the expression "unexhausted paper"

means a ballot paper on which a further

preference is recorded for a continuing

candidate:

Provided that a paper shall be deemed to

be exhausted in any case in which \026

(a) the names of two or more

candidates whether continuing or

not are marked with the same

figure, and are next in order of

preference; or

(b) the name of the candidate next

in order of preference whether

continuing or not, is marked by

a number not following

consecutively after some other

number on the ballot paper or by

two or more numbers.

2. Ascertain the number of first

preference votes secured by each

candidate and credit him with that

number.

3. Add up the numbers so credited to

all the candidates, divide the total

by two and add one to the quotient

disregarding any remainder. The

resulting number is the quota

sufficient to secure the return of a

candidate at the election.

4. (1) If there are only two

contesting candidates then \026

(a) if one candidate gets larger

number of first preference votes

than the other, declare the former

as elected, or

(b) if both the candidates get

equal number of first preference

votes, determine the result by

drawing of lots. Exclude the

candidate on whom the lot falls and

declare the other candidate as

elected.

(2) If there are more than two

candidates then \026

(a) If one of them is found to

secure first preference votes

equal to or more than the quota

determined under instruction No.

3, declare him as elected, or

(b) If none of them secures first

preference votes equal to or

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more than the quota aforesaid,

proceed according to the

instructions hereinafter taking

into consideration second and

subsequent preferences as may be

necessary.

5. If at the end of the first or any

subsequent count the total number of

votes credited to any candidate is equal

to, or greater than the quota, or there

is only one continuing candidate, that

candidate is declared elected."

Illustration appended to Schedule II reads as under:

"Illustration \026 Suppose there are four

candidates A, B, C and D and the number

of first preference votes secured by

them are \026

A = 12

B = 11

C = 7

D = 5

35

The quota will be = 35/2+1 = 18.

No candidate having obtained votes

equal to or over the quota at the first

count the candidate having the lowest

votes, namely, D will be excluded.

Suppose there are second

preferences marked on all four ballot

papers in the parcel of D as below:

A = 2

B = 2

The fifth ballot paper will be

placed in the sub-parcel of exhausted

papers and the two papers recording

second preference for A and B each will

be placed in separate sub-parcels for A

and B; each of them will be credited

with two additional votes. The votes

for A,B and C will now be

A=12+2

B=11+2

C=7

Since at the end of the second

count no candidate be declared elected,

the candidate C having the lowest votes

out of the three continuing candidates

will now be excluded and his votes

transferred to other continuing

candidates A and B.

Suppose second preferences are

recorded in all the ballot papers in the

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parcel of C and are as below:

A = 4

B = 3

After crediting A and B with their

additional votes A would have secured 18

votes, that is equal to the quota and B

16 votes. A will therefore be declared

elected."

In Clause 3 of the Schedule it is provided how the

quota will be fixed. It also provides that the resulting

number which is the quota sufficient to secure the return of

candidates at the election. It is a mandatory provision but

the same would apply when one can be declared elected under

clause 3 of Schedule II. Clauses 4,5 and 6 provide

procedure for elimination of candidates and counting of

votes in first, second and third rounds etc. The

illustration appended to clause 5 also demonstrates that for

the purpose of achieving the ultimate result, adherence to

quota rule is not necessary.

The illustration itself shows that a situation may

arise where none of the candidates secure the requisite

number of first preference votes so as to fulfill the

criteria or quota. In the illustration itself the quota was

fixed at 18, none of the 4 candidates had secured quota.

Still the continued processes are required to be undertaken

which should result in declaration of election.

HIGH COURT:

Before the High Court a question of maintainability of

the election petition and consequently that of appeal was

raised. The High Court held that the provisions of the Act

and the Rules relating to filing of the election petition

and the appeal should receive benevolent construction. The

High Court, however, proceeded on the basis that whether the

election petition before the District Judge was maintainable

or not or whether the appeal filed thereagainst in the High

Court was maintainable or not; as two wrongs do not make one

right; the appeal was to be decided by the High Court on

merit. Relying on or on the basis of the decision of this

Court in Jaidrath Singh & Anr. Vs. Jivendra Kumar & Ors.

[(2000) 3 SCC 154] over the decision of this Court in

University of Poona and Others Vs. Shankar Narhar Ageshe and

Others [(1972) 3 SCC 186] the High Court allowed the appeal

and set aside the impugned order dated 28.07.2003 passed by

the District Judge holding that the Returning Officer was

right in declaring the post to be vacant.

SUBMISSIONS:

Mr. Dinesh Dwivedi, learned senior counsel appearing on

behalf of the appellant would submit that the High Court

committed a manifest error in interpreting the provisions of

the Second Schedule. According to the learned counsel, the

Second Schedule provides for election of a candidate and,

thus, the quota rule as adumbrated in the Second Schedule

may not be applicable in a case of this nature where one or

more candidates is a continuing candidate.

The process of elimination, Mr. Dwivedi would submit,

should continue till the last pursuant whereto the candidate

who had secured lowest number of first preference votes

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should be excluded and only when the number of first

preference votes secured by two or more candidates are the

same, a decision is to be taken by lot as to which of them

shall be excluded.

Mr. Kailash Vasdev, learned senior counsel appearing on

behalf of the first respondent, on the other hand, would

support the judgment of the High Court contending that in

this case neither the appellant nor the first respondent

obtained the required quota. It was urged that right of a

candidate to contest an election being a statutory right,

the procedure laid down therein must be scrupulously

complied with. Clause (3) of the Schedule, Mr. Vasdev would

submit, is mandatory in nature and, thus, unless the

candidate receives sufficient votes to fulfil the

requirement of quota as is required under the Rule, he

cannot be declared elected. The illustration appended to

the Second Schedule, the learned counsel would urge, does

not provide for declaration of a candidate to be successful

in election who has not secured any quota and in that view

of the matter, the impugned judgment cannot be faulted with.

CONSTITUTIONAL AND LEGISLATIVE SCHEME:

Constitution 73rd Amendment Act, 1992 was enacted

with a view to provide for democracy at the grass-root

level. 'Panchayat' is an institution of self-governance at

the village, intermediate and district levels. It is

required to be constituted in accordance with Part IX of the

Constitution of India. Article 243C (3) of the Constitution

provides that the Legislature of a State may by law provide

for the representation of a Chairperson of the Panchayats at

the village level, in the Panchayats at the intermediate

level or in the case of a State not having Panchayats at the

intermediate level, in the Panchayats at the district level.

The Adhyaksha Panchayat 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 level, being a

constitutional requirement. The State Act and the rules

applicable therefor must, therefore, be interpreted having

regard to the constitutional scheme.

HARE AND CLARK PRINCIPLE:

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, named

after Thomas Hare, an Englishman one of its developers.

Andrew Inglis Clark, Tasmanian Attorney-General 1888 and a

member of the Tasmanian Parliament, introduced a modified

version of the Hare system into Tasmanian law in 1896. This

system is now known as the Hare-Clark electoral system.

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 them preferences 1,2,3 and so

on. A quota is fixed which is the minimum number of votes

which cannot be secured by more candidates than the number

of seats. When a candidate secures votes equal 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 (votes exceeding the quota) are transferred to

other candidates in proportion of second preference

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indicated in his ballot papers. After surplus votes of all

candidates are transferred, if all seats are not filled in

then candidate who has polled lowest votes is eliminated and

are continuing (are not elected or eliminated). This

process goes on till all seats are filled in by completion

of quota or candidates remaining do not exceed seats still

to be filled in. This system ensures actual use of maximum

number of votes polled.

The system poses a complex system and difficult for use

where large number of voters are illiterate. In a complex

society like India where divergent religious, linguist or

cultural groups and large number of political parties exist,

use of single transferable system in elections to

legislatures and other bodies is although advocated but the

method of voting and computations in this system sometimes

renders it unsuitable for an election involving masses. One

does not know if feeling of segregation from other groups

which is already there may be aggravated if this system is

employed. (See Law of Elections by Narendra Chapalgaonker,

2nd edition)

The purpose of the Hare system is intended to secure

representation of every shade of the electorate's opinion in

direct proportion to its numerical strength.

APPLICATION OF THE RULE:

The Hare-Clark electoral system is a type of

proportional representation system also known as the Single

Transferable Vote (S.T.V.) method. Under this system,

electors vote by showing preferences for individual

candidates. In order to be elected, a candidate needs to

receive a quota votes. Each elector has a single vote,

which can be transferred from candidate to candidate

according to the preferences shown, until all the vacancies

are filled.

As to how Single Transferable Vote works, has been

explained by Vernon Bogdanor at page 81 of his book title

"What is Proportional Representation/" as follows :

a) In that system, voters mark preferences for

candidates in the order of their choice by using

the numbers 1,2, 3, 4, 5 and so on. If there are

five vacancies, voters are instructed to show five

preferences; if there are seven vacancies, voters

are instructed to show seven preferences.

b) In order to get elected a candidate has to receive

a quota of votes. However, he may be elected

without a quota. This can happen when the number

of candidates remaining in the count, who have not

been elected or excluded (continuing candidate) is

equal to the number of vacancies that remain to be

filed. Suppose there are two vacancies. For the

said two vacancies, suppose there are five

candidates. One of them attains the exact quota,

then he stands elected. However, the remaining

candidates do not secure the quota. Therefore,

one vacancy out of two remains unfilled. For that

vacancy, the candidate with the smallest number of

votes is excluded and his votes are distributed to

continuing candidates according to the remaining

preferences. The eliminated candidate with

smallest number of votes is called "excluded

candidate". Votes of such excluded candidates

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are distributed to the continuing candidates. If

in the process, any continuing candidate secures

the quota, he fills up the remaining vacancy.

However, if despite the addition of transferred

votes, the remaining continuing candidates do not

secure the quota then Returning Officer has to

continue to apply the principles of elimination

till the number of continuing candidates in the

count is equal to the vacancy that remains to be

filled. Therefore, even under the Hare system, a

candidate can be elected without a quota. It

operates at two levels. In cases where a

candidate receives votes in excess of the quota

the said system prevents wastage of surplus votes

by transfer of surplus in favour of continuing

candidates. In cases where the quota cannot be

attained, it eliminates the candidates having

least number of votes, by principle of elimination

and the votes of such excluded candidates are

distributed to the remaining continuing candidates

so that the resultant number is equal to the

vacancy which remains to be filled.

In short, the Hare system works on two principles,

namely, transfer of surplus votes and transfer of votes of

eliminated candidates. In the present case, we are concerned

with only one vacancy and three candidates and therefore the

principle of transferring the votes of eliminated candidates

alone is applicable.

How is a candidate elected?

A candidate is elected when his/her total number of

votes equals or exceeds the quota.

What is the quota?

The quota is the lowest number of votes a candidate

needs to be certain of election.

To calculate the quota, the number of formal votes is

divided by one more than the number of candidates to be

elected (rounded up to the next whole number).

If five candidates each receive a quota (just over one

sixth of the formal vote) then less than one quota of the

votes remain.

Is a quota rule mandatory?

The system states that it is always not necessary to

get a quota.

In House of Assembly elections, it is common that the

last elected member in a division is elected without

obtaining a quota. In some cases the last two elected

members in a division are elected without each obtaining a

quota.

During the distribution of preferences, some votes are

"lost" from the count. A small number are lost due to

rounding of fractional numbers. A more significant number of

votes are "exhausted" toward the end of the count, as many

ballot papers do not show a preference for any remaining

candidate.

Where the contest for the last seat is close, it is

common for the remaining two candidates to both have less

than a quota. The candidate with the least votes is

excluded, and the other candidate elected without reaching

the quota. The more votes that are lost during the scrutiny,

the more likely that not all elected members will obtain the

quota.

A less common situation occurs where remaining three

candidates are contesting the last two seats. In this case,

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the candidate with the least votes is excluded, and the

other two candidates elected without either reaching the

quota.

Transfer Values

Ballot papers and votes are different.

Ballot papers are the medium from which candidates

receive votes. The original value of a ballot paper is 1

vote, however, this can change during a scrutiny.

To distribute surplus votes the last parcel of ballot

papers must have a new (reduced) transfer value. This

fractional transfer value is calculated as follows:

Transfer Value= Surplus Votes

Number of ballot papers in the last parcel

(truncate to four decimal)

After each count, the total number of votes counted to

each continuing candidate is recalculated. Any continuing

candidate who has reached the quota is declared elected and

does not continue in the scrutiny.

The next count

When more than one candidate is elected with a surplus,

each surplus is redistributed in order of election as

separate counts.

Once all surpluses have been distributed, the candidate

with the fewest total votes is declared excluded, withdrawn

from the scrutiny and all of his/her ballot papers are

redistributed to continuing candidates.

Excluded candidates

The exclusion of a candidate can take many counts to

complete.

When a candidate is excluded, ballot papers are

redistributed in the order, and at the same transfer value,

they were received by the excluded candidate. Each parcel of

ballot papers is distributed as a new count.

After each count, each continuing candidate's total

number of votes is recalculated. Where a continuing

candidate reaches the quota, he/she is declared elected and

withdrawn from the scrutiny before the next count commences.

Once the exclusion is complete, distribute the surplus

of any candidate(s) elected during the exclusion (in order

of election). Otherwise exclude the continuing candidate

with the fewest total number of votes.

When does a Hare-Clark scrutiny stop?

The process of distributing surplus votes from elected

candidates and excluding the candidate with the fewest votes

continues until all vacancies are filled.

In the case of the Tasmanian House of Assembly, the

scrutiny stops as soon as five candidates are declared

elected.

Proportional Representations:

Election of an alderman of a county council or a Mayor

depends upon the Statute governing the field. Section 14

(1) & (2) of the Local Government (Miscellaneous and

Previous Act, 1953) by way of example lays down the

procedure for an alderman of a county council had been laid

down thus:

"Every person entitled to vote may vote

for any number of persons, not exceeding

the number of vacancies to be filled, by

signing and delivering at the meeting to

the persons presiding thereat a voting

paper containing the full names and

places of residence and descriptions of

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the persons for whom he votes.

The procedure of declaring the result of

an aldermanic election was altered by

section 14 of the Local Government

(Miscellaneous Provisions) Act, 1953,

formerly all the voting papers had to be

read out in full but the new procedure

is as follows.

The person presiding must ascertain

the votes given to each person and in

the minutes of the meeting there must be

included the full names, residences and

descriptions of the persons to whom

votes were given and the names of the

persons by whom the votes were given.

In the case of equality of votes,

the person presiding at the meeting,

whether or not entitled to vote in the

first instance, shall have a casting

vote. This includes the chairman, even

though an alderman.

As many persons as there are

vacancies to be filled, being the

persons who have the greatest number of

votes, shall be declared by the person

presiding at the meeting to be

elected."

(See Local Government Elections by

Schofield, Fourth edition)

It is interesting to note that the proportional

representation doctrine in some jurisdiction has been

declared ultra vires by the American Courts. In 123

American Law Reports (1939), page 235, it is stated:

"Elections, Section 35 \026 proportional

representation- constitutionality.

Provisions of proposed legislation for

establishment of system of proportional

representation (known as Hare system)

for electing nine members of city

council, which in effect allows to the

elector only one effective vote for only

one councilman are repugnant to the

constitutional provisions guaranteeing

right of citizens under conditions of

qualification specified therein to vote

in the election of all civil officers

and on all questions in all legally

organised town, ward, or district

meetings."

At page 252 of the said book, by way of Annotation, it

is stated:

"Introduction

This annotation supplements that in

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110 ALR 1521.

The Mechanics of the Hare System, which

appears to be the only system of

proportional representation which has

come before the courts of last resort of

this country up to the present time, are

outlined in the original annotation in

110 ALR on pp.1521 and 1522, and readers

interested in the details of the systems

are referred to the pages cited.

Constitutionality-proportional

representation.

(Supplementing annotation in 110 ALR

1522)

Prior to the decision s in OPINION TO

THE GOVERNOR (R.I.) (reported herewith)

ante, 235, the courts were apparently

evenly divided on the question of

constitutionality of statutes making

provisions for proportional

representation in elections. As will be

observed, the Supreme Court of Rhode

Island in that case distinguished the

New York decision upholding the validity

of the statute and took the view that

the Hare System of proportional

representation, which the legislature

was seeking to incorporate into an

amendment to the charter of the City of

Providence, was violative of a section

of the state Constitution providing that

citizens meeting certain residence

qualifications should "have a right to

vote in the elections of all civil

officers and on all questions in all

legally organized town, ward or district

meetings."

The position taken by the new York Court

of Appeals in Johnson v. New York

(1937) 274 N.Y. 411, 9 N.E. (2d) 30, 110

ALR 1502, the case to which the original

annotation is appended, that there is

nothing in the provisions of the New

York Constitution relating to elections

which render invalid the proportional

representation method of electing

municipal officials was reaffirmed in

Johnson v. Etkin (1938) 279 N.Y.1, 17

N.E. (2d) 401, in connection with a

proposed change of the charter of the

City of Schenectady which introduced the

proportional representation system to

that municipality. The primary

controversy in this case, however,

revolved around the power of a

municipality which had adopted a plan of

government offered under the Optional

City Government Law to amend its charter

within a certain time after the adoption

of such plan by means of a local law

adopted under the Home Rule Amendment to

the Constitution, or by proper steps

taken under the City Home Rule Law.

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In Section 273 of American Jurisprudence 2d, it is

stated:

"The expression "proportional

representation" is a generic term and

applies to different systems of voting

which, while similar to each other in

essentials, vary considerably in detail.

One system, commonly known as the single

transferable vote or "Hare system", is

usually applied to the election of a

legislative board of body. Under this

system candidates are not elected by

their obtaining a majority or plurality

of the votes cast, but by their

obtaining a quota of a designated number

of votes or a certain proportion of the

entire vote in which electors are

permitted to express second, third, or

additional choices. So that an elector

would not waste his vote, if the

candidate for whom he has expressed his

first 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 first choices is then dropped

and his votes are distributed in the

same way. This process of elimination

goes on until enough candidates have

filled their quotas or until the

successive eliminations have left no

more than enough to fill the vacant

positions. This system of voting has

been upheld in some jurisdictions

against constitutional objections. But

in others it has been held to contravene

constitutional provisions relating to

the right of suffrage. For example, it

has been held that by allowing only one

effect vote for one officer in an

election of several such officers,

proportional representation is repugnant

to a constitutional provisions

guaranteeing qualified citizens the

right to vote in the election of all

civil officers and on all questions in

all legally organised town, ward, or

district meetings.

How the Courts should read the system:

Although Hare system of proportional representation has

been made applicable in the instant case, the Court has to

bear in mind that only one candidate is required to be

elected whereafter only a District Panchayat would be

constituted. The scheme of the Constitution and the statute

is not that in case of persons securing equal votes, a re-

election shall be held which may also yield similar result.

Experiences show that even after holding repeated elections,

the same problem of two candidates securing same number of

votes may be felt as a result whereof constitution of a

District Panchayat would become a difficult task. The

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mechanism to elect a Chairman is a delicate task.

The provisions made in the Rules provide for different

methods to be adopted at different stages. Securing of the

quota may be necessary at one stage but may not be so

necessary at a subsequent stage to which we would advert to

a little later.

PRINCIPLES OF INTERPRETATION:

It is now well-settled that object of the Act must be

given effect to. The object of the Act being to elect an

Adhyaksha, constructions 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 of one of the

candidates should be adhered to and for that purpose, if

necessary, the doctrine of purposive construction may be

taken recourse to.

It is trite that for the purpose of interpretation a

statute is to be read in its entirety and all efforts must

be made to give effect to the statutory scheme. [See High

Court of Gujarat & Anr. Vs. Gujarat Kishan Mazdoor Panchayat

& Ors. [JT 2003 (3) SC 50], Indian Handicrafts Emporium and

Others vs. Union of India and Others [(2003) 7 SCC 589],

Ameer Trading Corporation Ltd. vs. Shapoorji Data Processing

Ltd. [JT 2003 (9) SC 109 = 2003 (9) SCALE 713],Ashok Leyland

Vs. State of Tamil Nadu and Anr. [2004 (1) SCALE 224], State

of West Bengal and Ors. Vs. Sujit Kumar Rana [2004 (1) SCALE

641], Deepal Girishbhai Soni & Ors. Vs. United India

Insurance Co. Ltd. Baroda [2004 (3) SCALE 546] and

Secretary, Department of Excise & Commercial Taxes and

Others Vs. Sun Bright Marketing (P) Ltd., Chhattisgarh and

Another [(2004) 3 SCC 185].

The object underlying the statute is required to be

given effect to by applying the principles of purposive

construction.

Francis Bennion in his treatise 'Statutory

Interpretation' at page 810 described purposive construction

in the following manner:-

"A purposive construction of an

enactment is one which gives effect to the

legislative purpose by \026

(a) following the literal meaning of the

enactment where that meaning is in accordance

with the legislative purpose (in this Code

called a purposive-and-literal construction),

or

(b) applying a strained meaning where

the literal meaning is not in accordance with

the legislative purpose (in the Code called a

purposive-and-strained construction)."

Holding of elections in a District Panchayat is

mandatory. The right to contest an election although flows

from a statute and regulated thereby, it would not be

correct to contend that a strict construction of the

statutory provisions is called for.

The principle of literal interpretation to the

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provisions of the rules and procedures laid down therein

cannot be applied for more than one reason.

A statute must be construed having regard to the

legislative intent. It has to be meaningful. A construction

which leads to manifest absurdity must not be preferred to a

construction which would fulfill the object and purport of

the legislative intent.

The question as to when there can be a tie between two

candidates leading to a deadlock must be judged on the fact

situation obtaining in a particular case. If by a process

of interpretation such consequences can be avoided, the same

should be preferred to application of any other principle of

interpretation of statute.

It must also be borne in mind that elector's votes are

not to be wasted. The possibility of a tie would be very

high if strict interpretation of the rule is resorted to.

For proper construction of a statute the Courts must also

take into consideration the social milieau. The courts

cannot ignore that local, caste and political affinity play

a major role in our electoral system.

It is furthermore that unreasonable result or result

which create uncertainty has to be eschewed.

In Mahadeo Oil Mills and Others Vs. Sub-Divisional

Magistrate Araria and Others [AIR 1978 Patna 86], it was

held:

"It was stated in this way by Parke B.:

'It is a very useful rule, in the

construction of a statute, to adhere to

the ordinary meaning of the words used,

and to the grammatical construction,

unless that is at variance with the

intention of the legislature, to be

collected from the statute itself, or

leads to any manifest absurdity or

repugnance, in which case the language

may be varied or modified, so as to

avoid such inconvenience, but no

further.' 'If', said Brett L.J. 'the

inconvenience is not only great, but

what I may call an absurd inconvenience,

by reading an enactment in its ordinary

sense, whereas if you read it in a

manner in which it is capable though not

its ordinary sense, there would not be

any inconvenience at all, there would be

reason why you should not read it

according to its ordinary grammatical

meaning."

Even a construction which would make the provisions

more effective and workable must be adopted and to see if it

is possible to be done without doing too much violence of

the language used.

Every clause of a section should be construed with

reference to the context and other clauses thereof so that

the construction to be put on a particular provision makes a

consistent enactment of the whole statute.

This would be more so if literal construction of a

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particular clause leads to manifestly absurdity or anomalous

results which could not have been intended by the

Legislature. "An intention to produce an unreasonable

result", said Danckwerts, L.J., in Artemiou v. Procopiou [

1966 1 QB 878] " is not to be imputed to a statute if there

some other construction available". Where to apply words

literally would "defeat the obvious intention 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?

Interpretation of a provision as regard electoral

process framed to make certain conditions requires

construction of principles having regard to the backdrop

thereof.

Hare Principle was made applicable when a large number

of posts were required to be filled up. The authorities

available as regards the applicability of said principle,

some of which are noticed hereinbefore do not suggest that

the said principles are applied in a case where the number

of voters 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 election

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 in election involving illiterate masses.

In 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 turn 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 of quota.

It speaks of declaration of a 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.

Clause (6) again provides for exclusion by application of

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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 of votes 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 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. Illustration although are of

relevance and have some value in the construction of the

text of the 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 Vs. The State of Ajmer [AIR 1956

SC 404], the law has been stated in the following terms:

"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 if knowledge of certain 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 a 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

certain facts balanced against the

triviality of the issue at stake and the

ease with which the accused could prove

them, are all matters that must 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

burden is on the prosecution and never

shifts."

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Rules, if given the aforementioned 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 which an election is held must be

achieved.

APPLICATION OF THE RULE:

In University of Poona (supra) a 3-Judge Bench of this

Court held:

"11. 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 of election is based

on a quota determined by the following

formula. The total votes cast is divided

by the number of seats to be filled plus

one, and one is added to the quotient.

If 100,000 votes are cast and 4 seats

are to be filled, divide by 5 to get a

quotient of 20,000, then add 1 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 of exclusion or elimination goes

on until enough candidates have filled

their quotas or until the successive

elimination's 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 to the number

of candidates. If the candidate, for whom a voter has

expressed his choice, does not need his vote, the surplus

votes are distributed as per the second choice. Only when

enough candidates are 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 of Poona (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, (ii) until

the successive eliminations leave behind one continuing

candidate, which would be enough to fill vacancy.

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In Umesh Sharma Vs. State Election Commissioner, W.P.

No. 1021 (M/B) of 2003 disposed of on 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

of the 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 Successive Elimination till one

candidate remains to fill-in one

vacancy. We may clarify that if there

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."

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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 Vs. Umesh

Sharma & 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 principles

of literal interpretation was applied therein without

noticing the consequence 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 of

Poona (supra).

Furthermore, the decision of University of Poona

(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 of Poona (supra) had been referred to but the

ratio of that decision had not been applied.

WHETHER THE ELECTION PETITION IS MAINTAINABLE:

At the first flush it may appear that the election

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

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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, of the opinion that the High Court

committed an error in interpreting the statutory provisions

laying 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.