Thiru John & ANR Vs. Returning
Officer & Ors  INSC 110 (12 April 1977)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1977 AIR 1724 1977 SCR (3) 538 1977
SCC (3) 540
Constitution of India, Article 84(b)--Appellant
who was under aged to contest Rajya Sabha elections of 1974 gets his age in the
electoral Roll alone altered but not in other documents from 14-5-1946 to
14-5-1943 by producing an extract of the Baptism Register--Whether the result
of the election materially affected on the improper acceptance of
nomination--Representation of the People Act (Act 43), 1951, Sections 83, 97,
100 and 101.
Proof of disqualifications in an election
petition--Onus lies on the petitioner initially.
Evidence Act (Act I), 1872--Sections 17, 18,
19, 20 and 21--Admissions made in several documents ante litem motam--Burden of
proof shifts on the maker to show that they are erroneous.
to be a continuing candidate--Whether non-allotment of a "basket" or
"parcel" under Rule 74 automatically excludes him---Conduct of
Election Rules, 1961--Rules 71(1), 74 and 75(3), 79, 80 and 81(2).
In the biennial elections of 1974 for filling
six vacancies to the Rajya Sabha from the State of Tamil Nadu, there were eight
contestants, including both the appellants and one R. Mohanarangam, the
petitioner in Election Petition No. 1 of 1974. The requisite quota to secure
the election of a candidate was fixed at (22400 +1)/6+1 +1 =3201 and the appellant
John secured 3700 votes. While the appellant Subrahmanyam secured 300 votes,
Mohanarangam failed to secure any. The rest of them secured more than the
quota, thus leaving "surplus votes" for transfer within the meaning
of Rule 71 (6) of the Conduct of Election Rules.
In the election petitions filed by
Mohanarangam and Subrahmanyam, the election of Sri John was assailed on the
ground that on March 12, 1974, the date of the scrutiny of the nominations, he
was less than 30 years of age and as such he did not possess the qualifications
as to age laid down under Art. 84(b) of the Constitution that the improper
acceptance of John's nomination has materially affected the election. The
petitioners prayed that the election of Sri John be declared void and set aside
under s. 100 of the Representation of Peoples Act, 1951. Each of the petitioners
claimed that in the event of Sri John's election being set aside, he be
declared elected under s. 101 of the Act. A recrimination petition No. 1/74
under s. 97 read with s. 83 of the Representation of Peoples Act was also filed
by the appellant Subramanyam, opposing Mohanarangam's relief for the
declaration under s. 101 of the Act, alleging that since the petitioner
Mohanarangam in E.P. 1/74 had not secured any vote, he, in the event of the
election of Sri John being set aside, was not entitled to be declared elected
in the place of John.
The trial Judge of the High Court held that
on the date of the scrutiny of nominations Sri John being.less than 30 years of
age was not qualified under Art. 84(b) of the Constitution to contest the
election to,the Rajya Sabha and accepting the election petition pro tanto set
aside John s election. The trial Judge, however, declined to grant further
declaration under s. 101 in favour of either of the election petitioner.
Dismissing the appeals, the Court,
HELD: (1) From the evidence on record it
stood clearly established that on the date of the scrutiny of nominations Sri
John was less than 30 years of age 539 and in view of Art. 84(b) of the
Constitution he was not competent to contest the election for the Rajya Sabha.
His nomination was, therefore, improperly accepted by the Returning Officer,
and this improper acceptance has, in so far as' it concerned the returned
candidate, Sri John materially affected the result of the election. [547 F-G]
(2) The onus of proving that on the date fixed for the scrutiny of nominations,
a contestant was less than 30 years of age was on the election petitioners. In
the instant case, the petitioners had amply discharged this onus by bringing on
record over-whelming documentary evidence of a cogent and convincing character.
This documentary evidence includes no less than a dozen previous admissions and
declarations made between March 1964 and July 1973 by Sri John himself about
his age, to the effect that he was born in 1946 and that his date of birth was
14.5.1946. Apart from the evidence of these prior admissions the election
petitioners had brought other documentary evidence viz., the school record
purportedly signed by John's guardian, Secondary School Leaving Certificate
'and various other documents of the educational institutions, Marriage Register
Bar Council Record and Church records etc. pointing to the conclusion that Sri
John was born on 14.5.1946 and not on 14-5-1943. [542 D-H, 543 A-BF] (3) It is
well-settled that a party's admission as defined in sections 17 to 20
fulfilling the requirements of section 21, Evidence Act is substantive evidence
proprio vigore. An admission, if clearly and unequivocally made is the best
evidence against the party making it and though not conclusive, shifts the onus
on to the maker on the principle that "what a party himself admits to be
true may reasonably be presumed to be so" and until the presumption was
rebutted the fact admitted must be taken to be established. In the instant
case, there are a number of clear admissions in prior declarations precisely
and deliberately made in solemn documents by Shri John. These admissions were
made ante litem motam during the decade preceding the election in question.
These admissions were entitled to great weight. They had shifted the burden on
the appellant (Shri John) to show that they were incorrect. The appellant had
miserably failed to show that these admissions were incorrect. [543 C-E] (4)
Under Rule 71(1) of the Conduct of Election Rules, 1961, "Continuing
candidate" means any candidate not elected and not excluded from the poll
at any given time. Two elements must, therefore, be satisfied before a
candidate can be said to be a Continuing candidate. He should be a
"candidate not elected" and further he must not be excluded from the
poll at any given time. In the instant case Sri Mohanarangam fulfils both these
conditions. [550 B, 552 C] (5) The contention that an essential prerequisite to
the continuance of a candidate is the allotment of a "basket" or
"parcel" under Rule 74 and only such candidate is entitled to the
allotment of a basket who at the end of the count gets some vote to his credit
and opens his account, and since Mohanarangam did not get any vote whatever he
stood automatically excluded is not correct. There is nothing in Rule 74 or any
other Rule which, at an election to fill more than one seat, requires or
empowers the Returning Officer to exclude a candidate from the poll merely on
the ground that in the counting of the first preferences, he has not received
any valid vote. [552 E-H] (6) Sub-Rule (3) of Rule 75 which requires the Returning
Officer to exclude from the poll a candidate. whose score is the
lowest--governs the counting of votes where only one seat is to be filled and
at the end of any count, no candidate can be declared elected. Sub-Rule (3) of
Rule 75 has no application to the instant case. [552 G] (7) Rule 80 can have n6
application because, it comes into operation at a stage "after all
surpluses have been transferred. That stage never arrived in the instant case
because in the first counting. itself all the six seats were filled up six
candidates (including Shri John) having received the requisite quota of first
preference votes. Nor did the stage for applying Rule 81 arise, because at the
end of the first count, no vacancy remained untitled. In the instant case, shri
Mohanarangam did not get automatically excluded.
Both he and Sri Subrahmanyam were continuing
Sri Subrahmanyam could not be declared
elected as he had not obtained the required quota of 3201 votes. [522 H; 553 A]
540 (8) The ratio decidendi of Viswanatha v. Konappa is applicable only where,
(a) there are two contesting candidates and one of them is disqualified (b) and
the election is on the basis of single non-transferable vote. In the instant
case the election in question was not held by mode of single non-transferable
vote according to which a simple majority of votes secured ensures the success
candidate, but by proportional representation with single transferable yore
under which system the success of a candidate normally depends on his securing
the requisite quota. Shri Subrahmanyam was not the sole surviving continuing
candidate left in the field, after exclusion of the disqualified candidate,
Shri John. [554 G-H, 555 A] Wiswanatha v. Konappa AIR 1969 S.C. 604,
All the votes that had polled in favour of
Shri John who has been found by the court to be statutorily disqualified for
election cannot be regarded as thrown away and in consequence, the appellant
Shri Subrahmanyam who secure 300 votes as against none obtained by Shri
Mohanarangam cannot be declared elected. Shri Subrahmanyam was neither the sole
continuing candidate not had be secured the requisite quota of votes. It is
nobody's case that the electors who voted for Shri John had at the time of
election knowledge or notice of the statutory disqualification of this
On the contrary, they must have been under
the impression that Shri John was a candidate whose nomination had been validly
accepted by the Returning Officer. Had the electors notice of Shri John's
disqualification, how many of them would have voted for him and how many for
the other continuing candidates including Sarvashri Subrahmanyam and Mohanarangam
and in what preferential order, remains a question in the realm of speculation
and unpredictability. [553 B-E] R.M. Seshadri v.G.V. Pai AIR 1969 SC 692 @ p.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 18951896 1907 of 1974.
(From the Judgment and Decree dated the
14-10-1974 of the Madras High Court in Election Petitions Nos. 1 and 2 of
R. N. Choudhary and Mrs. V.D. Khanna, for the
appellant in CAs 1896/74.
Y.S. Chitley, T.N.S. Srinivasavaradacharya
& G. Ramaswamy, C. Lakshminarain, S.R.L. Narain and Vineet Kumar, for the
appellant in CA 1907/74.
T.N.C. Srinivasavaradacharya, S.C.
Lakshminarain, S.R.L.Narayan, M.S. Narasimahan, for respondent No. 10 in CA
1895, Resp. No. 6 in CA 1896 and respondent No. 7 in CA 1907.
A. V. Rangam and Miss A. Subshashini, for
respondent No. 1 in all the appeals and for respondent No. 2 in 1907.
J. M. Khanna, for respondent No. 8 in CAs.
The Judgment of the Court was delivered by
SARKARIA, J. The basic facts giving rise to these appeals being common, the
same will be disposed of under one judgment.
Notice calling for nominations to be filed
before 3 P.M.
11-3-1974, for filling six vacancies to the
Rajya Sabha from the State of Tamil Nadu in the biennial elections was issued
on March 4, 1974, Eleven candidates filed their nominations.
On scrutiny which was held on March 12, 1974.
all those nominations were found to be valid. On 541 14-3-1974, which was the
last date fixed for withdrawal, three candidates withdrew their nominations
leaving eight in the field. The poll was held on 21-3-1974. Counting of votes
took place on the same date. The result was published, according to which, the
contesting candidates secured the votes noted against their names as follows:
1. Shri Khadar Sha .. 3500
2. Shri Khaja Mohideen .. 3700
3. Shri V. Subrahmanyam .. 300
4. Shri C.D. Natarajan .. 3500
5. Shri R. Mohanarangam .. Nil 6 .Shri S.
Ranaganathan .. 4100
7. G. Lakshmanan .. 3600
8. D.C. John @ Valampuri John .. 3700 The
requisite quota to secure the election of a candidate was fixed at 22,400/(6+1)
+1 =3201 and candidates mentioned at serial Nos. 1, 2, 4, 6, 7 and 8 were
Two Election Petitions were filed by the
unsuccessful candidates. Election Petition 1 of 1974 was filed by Shri R.
Mohan Rangam and Election Petition 2 of 1974
by Shri V. Subrahmanyam. The petitioners prayed that the election of Shri D.C.
John be declared void and set aside under s. 100 of the Representation of the
People Act, 1951. Each of the petitioners claimed that in the event of Shri
John's election being set aside, he be declared elected under s. 101 of the
Act. In addition to the Returning Officer, the Electoral Registration Officer
and the Chief Election Commissioner, all the seven contestants were impleaded
The election of Shri John was assailed on the
ground that on March 9, 1974, the date of the scrutiny of his nomination, he
was less than 30 years' of age and as such, did not possess the qualification
as to age laid down in Article 84(b) of the Constitution. On these premises it
was pleaded that the nomination of Shri John was improperly accepted and in
consequence thereof, the result of the election has been materially affected.
A recriminatory petition No. 1/74 under s. 97
read with s. 83 of the Act was also filed by Shri V. Subrahmanyam petitioner in
E.P. 2/ 74, opposing Mohana Rangam's relief for declaration under s. 101. The
recriminator alleged that since the petitioner in E.P. 1/74 had not secured any
vote, he. in the event of the election of Shri John being set aside, was
entitled to be declared elected in the place of Shri John.
The learned trial Judge of the High Court
tried all the three petitions together and decided them by a common judgment.
8--502SCI/77 542 The trial Court held that on
the date of the scrutiny of his nomination, Shri John being less than 30 years
of age, was not qualified under Art. 84(b) of the Constitution, to contest the
election to the Rajya Sabha. On this short ground his election was set aside
and the Election Petitions were accepted pro tanto. The trial Court,
however,declined to grant the further declaration under s.
101 in favour of either of the
Aggrieved by that judgment, Shri John, has
filed in this Court Civil Appeals 1895-1896 of 1974, and Shri V. Subrahmanyam
Civil Appeal 1907 of 1974.
The first question that fails to be
determined in these appeals is: Whether Shri John Was born on May 14, 1946, as
has been found by the Court below, or on May 14, 1943 as contended by him ? Mr.
Chowdhary appearing for the appellant (Shri John) contends that the burden of
proving that Shri John, was at the material date below 30 years of age was on
the election-petitioner and that the latter had failed to discharge such
burden. Further grievance of Shri Chowdhary is that the High Court had wrongly
rejected the oral and documentary evidence produced by Shri John.
We find these contentions wholly devoid of
While it is true that the onus of proving
that on the date fixed for the scrutiny of nominations, Shri John was less than
30 years of age, was on the election-petitioners, they had amply discharged
this onus by bringing on record overwhelming documentary evidence of a cogent
and convincing character. This documentary evidence includes no less than a
dozen previous admissions and declarations made by Shri John himself about his age,
between March 1964 and July 1973. These documents containing such declarations
constituting Shri John's admissions are:
(i) Ex.P.7--Application for Pre-University
(ii) Ex.P-9--Application for B.A.
(iii) Ex. P-l4--Application for appearing in
(iv) Ex.P-l5--Application for the first
(v) Ex.P-l7--Application for admission to
(vi) Ex.P-l8--Application for second B.G.L.
Examination April 1972.
(vii) Ex.P-19--Application for second BGL
Examination, October 1972.
(viii) Ex.P-21--Application for admission
into Law College.
(iv) Ex.-22--Application for B.L. Degree
543 (x) Ex.P-23(a), (b) &
(c)--Applications dated 23-71973 for enrolment as Advocate submitted to the Bar
(xi) Ex.P-27--Voters Card containing
declaration of his age as 28 years signed by Shri John.
(xii) Ex.P-87--a Book written by Shri John,
containing a passage on its page 18 suggesting the inference that Shri John was
born in 1946.
All these documents aforesaid contain
admissions made by Shri John that he was born in 1946. In several of these
documents he declared 14-5-1946 as his date of birth.
It is well settled that a party's admission
as defined in Sees. 17 to 20, fulfilling the requirements of Sec. 21, Evidence
Act, is substantive evidence proprio vigore. An admission, if clearly and
unequivocally made, is the best evidence against the party making it and though
not conclusive, shifts the onus on to the maker on the principle that
"what a party himself admits to be true may reasonably be presumed to be
so" and until the presumption was rebutted the fact admitted must be taken
to be established.
The above principle will apply with greater
force in the instant case. Here, there are a number of clear admissions in
prior declarations precisely and deliberately made in solemn documents by Shri
John. These admissions were made ante litem motam during the decade preceding
the election in question. These admissions were entitled to great weight. They
had shifted the burden on the appellant (Shri John) to show that they were
incorrect. The appellant had miserably failed to show that these admissions
Apart from the evidence of these prior
admissions the election petitioners had brought other documentary evidence,
also, pointing to the conclusion that Shri John was born on 14-5-1946 and not
This evidence consisted of
1. (a) Exhibit P-1 an entry in the records of
St. Xavier's College School, wherein the date of Shri John's birth is recorded
(b) Ex.P.3 which purports to have been signed
by the guardian of Shri John, declaring his age as 14-5-1946;
(c) Ex.P-2, the E.Ss.L.C. signed by Rama
Prabhu, the Secretary to the Commission for Government Examinations. This
Certificate was issued under the authority of law.
2. Ex.P-4 Secondary School Leaving Certificate
wherein Shri John's date of birth is entered as 14-5-1946.
3. Ex.P-50, copy of the Fort St. George
Gazette, dated 19-2-1964 showing Shri John's date of birth as 14-5-1946.
4. (a)Ex.P-5 the transfer certificate issued
by the St. Xavier's High School.
(b) Ex.P-10 transfer certificate issued by
the Principal of the College.
(c) Ex.P-13 entry in the admission register
of the College for joining the first year B.G.L.
(d) Ex.P-16--entry in the admission register
of the College, for admission to second year B.G.L. Class.
(e) Ex. P-10--entry in admission register of
the College, 5. Bar Council Records relating to Ex. 'P-23.
6. Marriage Register, Ex.P-29, containing in
the column captioned "Age" as against the name of Shri John, the
entry "26 years" and the date of his baptism as 19-10-1946.
7. Ex.P.30, Periodical report from the Churches
regarding marriages solemnised therein, required under the Indian Christian
Marriage Act 1872, showing that Shri John's marriage was solemnised in St.
Francis Xavier's Church' Madras, on 6-4-1972 by Fr. G.K. Swami, and that on the
date of this marriage he was 26 years of age.
8. Exhibits P11, P-11(a), P-12 and P-l2(a)
records T.E.L.C. Kabis High School showing Shri John's date of birth as
9. Ex.p-28-Book--Varalatril Kalaignar Written
by Shri John containing biographical sketch. Therein, his date of birth is mentioned
The petitioner had also examined witnesses
who testified with regard to these documents and the facts appearing therein.
The learned trial Judge has carefully discussed and evaluated this documentary
and oral evidence. No material error or illegality on the part of the learned
Judge in appreciating this evidence has been pointed out.
The learned Judge found that the entries,
Ex.P.29, in the Marriage Register are of great evidentiary value. Mr.
Chaudhury assails this finding. According to
him, no legal provision or rule of practice requires that the date of Baptism
should be entered in such Register. Secondly, it is urged that the date of
baptism given therein is 19-10-1946, which stands falsified by the evidence of
Rev. Fr. Rosario, the Parish Priest who had baptised Shri John about 7 days
after his birth in 1943. It is further argued that the best evidence as to Shri
John's date of birth could be that of the entry in the Public Birth Register
maintained under authority of law and that the election-petitioner on whom the
onus lay, did not produce that evidence.
545 We find no substance in these contentions.
In the witness box both Shri John (RW. 1 ) and his eider brother (RW 3
)admitted their respective signatures on this entry (Ex.P. 29) in the Marriage
Register. They however, contended that the information about the date of
baptism was not supplied by them to the Priest who solemnised the marriage and
made this entry. The eider brother (RW. 3) however, admitted that they had
signed the Register, notwithstanding the fact that the age of Shri John was
mentioned therein as 26 years. Both the brothers however, admitted that Shri
John's marriage was solemnised in St. Francis Xavier Church on 6-4-1972. In
view of the admissions of RWs 1 and 3, the High Court was right in holding that
Ex.P.29 stood proved, and the entries therein were entitled to great weight.
As regards the Birth Register of 1946, the
election petitioner made repeated attempts to get the same summoned and
produced in Court. The process issued by the Court was returned with the report
that the Register of 1946 was untraceable. Thereafter, a direction was issued
by the Court to trace and produce it. A search for this record was made by the
record remained untraceable. The ElectionPetitioner contended before the High
Court that Shri John had by the exercise of his influence, prevented the production
of this record. The High Court found this charge to be incorrect. Nevertheless,
it held that the Public Birth Register of 1946 had been lost long ago. This
being the case, the non-production of the Birth Register of 1946, must be held
to be a neutral circumstance.
The discrepancy pointed out by Shri Choudhury
as to the date of the baptism of Shri John, takes us to the evidence produced
by him. Shri John brought on the record three documents, R1, R2 and R4. R-1 is
an extract from the Baptism Register kept by the Ovari-Tuticorin Diocese.
The document R-1 according to the High Court
was inducted in a questionable manner, without even an application for it. This
was issued by the Parish Priest, Peter Royan (RW 5), and purports to be a copy
of an entry in the Baptism Register, which according to the admission wrung out
from RW 5, had itself been re-written and copied from the original.
The Parish Priest conceded that he had burnt
the original because it was in a very bad condition. The High Court found and
we think rightly--that this explanation of nonproduction of the original was
thoroughly unsatisfactory, and unbecoming of any Christian, more so, one
connected with Church affairs, that by this 'unholy act' of burning the
register which was a violation of. Canon 777, Paragraph 676, the witness (RW 5)
had done great disservice to Christianity and greater disservice to the cause
Since R-1 was only a copy of a copy (R 4),
the preparation of which was itself suspect and the explanation about the
non-production of the original was palpably unbelievable, these documents were
rightly ruled out of evidence.
R.W. 2, Rev. Fr. Rosario stated that he
positively remembered that in the year 1943 when he was the Parish Priest, he
had baptised Shri John. The witness was an old man. He had no Baptism Register
or any other contemporaneous record to refresh his memory with regard to an
event which took place more than a quarter of a century back. He was deposing
to a fact in issue merely from memory. Human memory being fallible, it was
hazardous to accept his ipse dixit.The oral evidence of the witness could not
be preferred to the entry in the Marriage Register, Ex. P 29, showing that Shri
John on the date of his marriage, which took place in 1972, was 26 year old and
had been baptised in 1946. It is true that there is a slight discrepancy
between the date of his baptism as entered in the Marriage Register and the
date of his birth as admitted by him in the various applications he submitted
for admission to various classes in College or for enrolment as an Advocate.
But there is no discrepancy with regard to the year of birth as well as baptism
being 1946. In Ex.P.
29, the date of his baptism is entered as
19-10-1946. The biodata appearing in the book Ex.P.28, which, according to the
publisher, RW-4, was entered by him on the basis of information derived from
Shri John, gives his date of birth as 14-10-1946, while all the numerous public
records, the declarations constituting the prior admissions of Shri John,
produced in evidence by the Election-Petitioner, consistently show Shri John's
date of birth as 24-5-1946.
We have been taken through the oral evidence
rendered by Shri John (RW 1) and his eider brother (RW 3). Their interested
testimony makes interesting reading.
Shri John was asked in cross-examination to
state how he came to contest the Rajya Sabha elections ? He replied that, as
usual, in his village Ovari, he was having a discussion with the members of his
community to settle a dispute between owners of catamaran and mechanised boats.
A suggestion was made to him that he should contest an election to Parliament
as a representative of the fishermen community. Shri John told them that
"..an election to the Council of States is fast approaching and the only
thing is I cannot enter the Rajya Sabha, because I have not completed the age
of 30 years." Shri John was further questioned by the Counsel:
"Then what happened ?" He replied:
"My eldest brother was one among those who
were assembled there. He told me along with another elderly gentleman, whose
name I am not able to recollect now:
"What non-sense are you talking? You
have compleated 30 years positively." Moreover they told me in adition :
We have to refer to the Registers kept in the
With this idea put into his head, the witness
next morning along with his brother visited the village Church and met Rev. Fr.
Peter (R.W. 5) and asked for the Baptism Register relating to the witness. Rev.
Fr. Peter took out the Register, Ex. R-4, and turned .the leaves, and to the
surprise of the witness, he saw his date of birth noted therein as 14-5-1943.
Thereafter, Shri John approached the Chief 547 Electoral Officer, Madras, and
made an application (Ex.P.23) on 26-2-1974 for correction and change of the
date of his birth, as noted in the Electoral Roll, from '14-5-1946' to
'14-5-1943'. His application was allowed and the entry in the Electoral Roll as
to age wag amended accordingly on the 6th or 7th March 1974. On further
cross-examination, Shri John frankly conceded that before seeing the Baptism
Register in the second week of February 1974, he had all along been under the
genuine impression that he was born on 14-5-1946. It was only on seeing the
Register that he came to believe that he was born in 1943.
It is to be remembered that this Baptism
Register (R. 4) is the same, which was found by the High Court to be a
suspicious record, prepared in suspicious circumstances, wholly unworthy of
RW. 3, the eider brother of Shri John also
stated that when the elders of the village asked him to contest the election,
he replied that he had not attained the proper age, i.e. "31 years"
which was necessary to contest the election. Immediately, the witness intervened:
"What nonsense you are talking ? You have attained the proper age
......you must go and refer in the Church". About their going to Priest
Rev. Fr. Peter Royan at the village Church and scrutinising the Baptism
Register his version is more or less the same as of RW-1. This witness, as
already noticed, admitted that at the time of his brother, Shri John's
marriage, he had also signed the entry, Ex.P-29, in the Marriage Register on
6-4-1972. He further conceded that in this entry Ex. P-29, the age of the bridegroom,
Shri John, was mentioned as 26 years. He further conceded that in Ex. P. 29,
the date of Shri John's baptism is noted as 19-10-1946. But the witness, wanted
the Court to have it believed that he had signed this entry without looking
into it. This version was too incredible to be swallowed without demur. The
conclusion was inescapable that on 6-4-1972, Shri J.D. Mohan, RW-3, the eldest
brother of Shri John, whose parents were dead, knew that the particulars of
this entry. showing his age to be 26 years on 6-4-1972, and the date of his
baptism in 1946, were true.
That is why he and his brother John, without
raising any objection, affixed their signatures thereto in token of its
We need not dilate on the question of Shri
John's age further. All aspects of this issue have been discussed threadbare by
the High Court. Suffice it to say, that from the evidence on record it stood
clearly established that on the date of the scrutiny of the nominations, Shri
John was less than 30 years of are and in view of Article 84(b) of the
Constitution he was not competent to contest the election for the Rajya Sabha.
His nomination was therefore improperly accepted by the Returning Officer, and
this improper acceptance has, in so far as it concerned the returned candidate,
Shri John, materially affected the result of the election.
Shri John's election was thus rightly set
aside by the High Court.
Now we come to the second question, whether
Shri V. Subramanyan, appellant in C.A. 1907 of 1974, is entitled to be declared
elected in lieu of Shri John whose election has been set aside ? 548 Shri
Ramaswami, learned Counsel for this appellant, has advanced alternative
arguments. It is submitted that since Shri Mohana Rangam did not secure any
vote at all, he had ceased to be a continuing candidate and stood'
automatically excluded, leaving only Shri Subramanyam, sole continuing
candidate in the field. It is emphasised that Shri Rangam has not filed any
recriminatory petition. In this situation, it is maintained, Shri Subramanyam
would be deemed to have been elected, although he had secured only 300 votes.
Reference in this connection has been made to
Rule 81(2) of the Conduct of Election Rules, 1961.
The alternative argument of Shri Ramaswami is
that since Shri John was not a qualified candidate, the votes cast in his
favour have to be treated as thrown away, and even if both Shri Mohan Rangam
and Shri Subramanyam are assumed to be continuing_ candidates, the surplus
votes cast in favour of the five successful candidates had to be transferred
and redistributed in favour of these continuing candidates. It is urged that
for this purpose the Court should send for and scrutinise the ballot papers for
further counting. Shri Ramaswami further pointed out that the observations of
this Court in Viswanatha Reddy v. Konappa Rudrappa Nadganda(1) to the effect,
that the votes cast in favour of the disqualified candidate are to be treated
as thrown away, are equally applicable to the elections for filling vacant
seats in the Council of States, notwithstanding the fact that these elections
are held according to the system of proportional representation with a single
transferable vote whereunder there is no question of obtaining majority of
valid votes, but only the required quota.
In support of his contentions Shri Ramaswami
has copiously referred to the treatise, the Single Transferable Vote by K.V.
Krishnaswamy Aiyar published in 1946, and the relevant provisions of the
Conduct of Election Rules, 1961 (for short, referred to as the Election Rules).
The provisions material for our purpose are
contained.in Part VII of the Election Rules. Shri K.V. Krishnaswamy Aiyar m his
book,The Single Transferable Vote (1946 Edn.) page 23, sums up the general
principles of this mode of election, thus:
"The single vote is transferable from
one nominee to another and that takes place in two contingencies where there
would otherwise be a wastage of votes.
(1 ) when a candidate obtains more than what
is required for his success and therefore has an unnecessary surplus;
(2) When a candidate polls so few votes that
he has absolutely no chance and therefore the votes nominating him are liable
to be wasted." Relevant Rules in Part VII of the Election Rules are
modulated on the principles enunciated by Shri Aiyar in the aforesaid book. The
(1) A.I.R. 1969 S.C. 604.
549 material provisions are contained in Rule
2(1)(c), 67, 70, 71, 73 to 81 and 85.
Under the scheme and system envisaged by
these Election Rules, each elector has only one vote, irrespective of the
number of seats to be filled. But that single vote is transferable from one
candidate to another. The ballot paper bears the names of the candidates, and
the elector marks on it his preferences for the candidates by denoting it with
the figures 1, 2, 3, 4 and so on against the names chosen by him and this
denotation is understood to be alternative in the order indicated (vide Aiyar's
The Single Transferable Vote), The figure 1 set by the elector opposite the
name of a candidate means "first preference"; the figure 2 set
opposite the name of a candidate, the "second preference", and so on
[Rule 71(ii)]. The minimum number of valid votes requisite to secure the return
of a candidate at the election is called the quota. At an election where only
one seat is to be filled, every ballot paper is deemed to be of the value of 1
at each count, and the quota is determined by adding the values credit to all
the candidates, and dividing the total by 2, and adding 1 to the quotient,
ignoring the remainder, if any, and the resulting number is the quota, vide,
Rule 75 (1 ). At an election where more than one seat is to be filled, every
ballot paper is deemed of the value of 100 and the quota is determined by
adding the values credited to all the candidates, and dividing the total by a
number which exceeds by 1 the number of vacancies to be filled, and adding 1 to
the quotient ignoring the remainder, if any, and the resulting number is the
quota (Rule 76).
The computation in the preliminary process is
The returning officer first deals with the
covers containing the postal ballot papers, and then opens the ballot boxes,
counts the ballot papers and sorts out and rejects the ballot papers found
invalid. A ballot paper is deemed invalid on which-(a) the figure 1 is not
marked; or (b) the figure 1 is set opposite the name of more than one candidate
or is so placed as to render it doubtful to which candidate it is intended to
apply; or (c) the figure 1 and some other figures are set opposite the name of
the same candidate; or (d) there is any mark or writing by which the elector
can be identified (Rule 73).
After rejecting the invalid papers, the
returning officer (a) arranges the remaining ballot papers in parcels according
to the first preference recorded for each candidate; (b) counts and records the
number of papers in each parcel and the total number; and (c) credits to each
candidate the value of the papers in his parcel. He then determines the quota
in accordance with Rule 75(1), or Rule 76, if the election is to fill one seat
or more than one seat, as the case may be.
550 If (at any election held for filling more
than one seat) 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 (Rule 78). if at the end of any count the value of
the ballot papers credited to a candidate is greater than the quota, the
surplus is transferred in accordance with the provisions of Rule 79, to the
continuing candidates indicated in the ballot papers of that candidate as being
next in order of the electors' preference [Sub-Rule (1 ) of Rule79]
"Surplus" means the number by which the value of the votes original
and transferred, of any candidate exceed the quota [Sub-rule (6) of Rule 71].
"Continuing candidate" means any candidate not elected and not
excluded from the poll at any given time [Sub-rule (1 ) of Rule 71]. If more
than one candidate have a surplus, the largest surplus is dealt with first and
the others in order of magnitude, but every surplus arising on the first count
is dealt with before those arising on the second count and so on. 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 decides by lot which candidate shall have his surplus first
distributed. [Sub-rules (2) & (3) of Rule 78].
"Original Vote", in relation to any
candidate, means a vote derived from a ballot paper on which a first preference
is recorded, for such candidate.
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 [Clause (a) of
sub-rule (4) of Rule 78]. "Exhausted paper" means a ballot paper on
which no further preference is recorded for a continuing candidate, provided
that a paper shall be deemed to have become exhausted whenever--(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 figure
not falling consecutively after some other figure on the ballot paper or by two
or more figures [Sub-Rule (3) of Rule 71]. The Returning Officer has to
ascertain the value of the papers in each sub-parcel and of all the unexhausted
papers. If the value of the unexhausted papers is equal 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. If the
value of the unexhausted paVers 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 [Sub-Rule (4) of Rule 78]. Sub-Rule (5) indicates the
procedure where the surplus of any candidate to be transferred arises from
transferred as well as orginal votes; All papers in the parcel or sub-parcel of
an elected candidate not tansferred under this rule have to set apart as
finally dealt with [Sub-Rule (7) of Rule 78].
551 Rule 80 speaks of exclusion of candidates
lowest on the poll. It reads:
"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 a candidate is equal to or greater than
the quota, the count then proceeding shall be completed but no further papers
shall be transferred to him.
(6) The process directed by this rule shall
be repeated on the successive exclusion 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, regard shall 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 candidate
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." Rule 81
deals with the filling of the last vacancies. It may also be extracted in full
because a good deal of argument is founded on it. It provides:
"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
552 (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
(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." The stage is now set for dealing with the contentions canvassed
before us. The first question that falls to be considered is: Whether Shri
Mohana Rangam, on account of his failure to secure any vote in the first count
is to be treated as excluded from the poll ? In other words, had he ceased to
be a 'continuing candidate' within the contemplation of the Election Rules ? We
have already referred to the definition of 'Continuing Candidate' in Rule
71(1). The definition has two elements which must be satisfied before a
candidate can be said to be a continuing candidate. He should be a
"candidate not elected" and further. he must not have been excluded
from the poll at any given time. Shri Mohann Rangam fulfils both these
Shri Ramaswami however,, contended that this
definition is to be interpreted and applied in the light of what has been said
in Rules 74 and 81. The argument is that an essential pre-requisite to the
continuance of a candidate is the allotment of a "basket" or
"parcel" under Rule 74, and only such candidate is entitled to the
allotment of a 'basket' who at the end of the count, gets some vote to his
credit and opens his account. Since Shri Rangam--proceeds the argument-did not
get any vote whatever, he stood automatically excluded and no question of
allotting any "parcel" to him arose.
The contention must be repelled.
There is nothing in Rule 74 or any other Rule
which, at an election to fill more than one seat, requires or empowers the
returning officer to exclude a candidate from the poll merely on the ground
that in the counting of the first preferences, he has not secured any valid
vote. SubRule (3) of Rule 75, to which reference was made at one stage, has no
application to the instant case. That sub-rule---which requires the returning
officer to exclude from the poll a candidate whose score is the lowest--governs
the counting of votes where only one seat is to be filled and at the end of any
count, no candidate can be declared elected. Such is not the case before us.
Rule 80 also can have no application because it comes into operation at a stage
"after all surpluses have been transferred". That stage never arrived
in the instant case because in the first counting itself, all the six seats
were filled up, six candidates 553 (including Shri John) having secured the
requisite quota of first preference votes. Nor did the stage for applying Rule
81 arise, because at the end of the first count, no vacancy remained unfilled.
We therefore, repel the contention of the
learned counsel and hold that Shri Mohana Rangam did not get automatically
excluded. Both he and Shri Subramanyan were 'continuing candidates'. Shri
Subramanyan could not be declared elected as he had not obtained the required
quota of 3,201 votes.
This takes us to the next question. Should
all the votes that had polled in favour of the candidate (Shri John) who has
been found by the Court to be statutorily disqualified for election,, be
regarded as thrown away, and in consequence, the appellant, Shri Subramanyan,
who secured 300 votes as against none obtained by Shri Mohana Rangam, be
declared elected ? Again, the answer to this question, in our opinion, must be
in tire negative. It is nobody's case that the electors who voted for Shri
John, had at the time of election, knowledge or notice of the statutory disqualification
of this candidate. On the contrary, they must have been under the impression
that Shri John was a candidate whose nomination had been validly accepted by
the returning officer..Had the electors notice of Shri John's disqualification,
how many of them would have voted for him and how many for the other continuing
candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what
preferential order, remains a question in the realm of speculation and
In the view we take, we are fortified by the
observations in this Court's decision in R.M. Seshadri v.G.V. Pai (1). In that
case, the election of R.M. Seshadri to the Madras Legislative Council was set
aside on the ground that he was guilty of the corrupt practice of hiring or
procuring motor vehicles to carry voters. The total votes polled were 12,153.
Since the voting was by a single transferable vote, three out of the five
candidates were eliminated at different counts with the result that their votes
were transferred to the second candidate named in the ballot. At the final
count Seshadri received 5643 votes and his nearest rival, G.V. Pal received
5388 votes. The number of the voters who were carried in the hired or procured
vehicles could not be ascertained.
Before this Court, it was contended that the
election of Seshadri having been set aside, G.V. Pai who had polled the next
highest number of votes should be declared elected.
Hidayatullah C.J. speaking for the Court,
rejected this contention with these observations:
"This (question) will depend on our
reaching the conclusion that but for the fact that voters were brought through
this corrupt practiee to the polling booths, the result of the election had
been materially affected In a single transferable vote, it is very difficult to
say how the voting would have gone, AIR. 1969 S.C. 692, at page 701 554 because
if all the votes which Seshadri had got, had gone to one of the other
candidates who got eliminated at the earlier counts, those candidates would
have won. We cannot order a recount because those voters were not free from
complicity. It would 'be speculating to decide how many of the voters were
brought to the polling booths in car. We think that we are not in a position to
declare Vasanta Pai as elected, because that would be merely a guess or surmise
as to the nature of the voting which would have taken place if this corrupt
practice had not been perpetrated." The position in the instant case is no
better. It is extremely difficult, if not impossible, to predicate what the
voting pattern would have been if the electors knew at the time of election,
that Shri John was not qualified to contest the election. In any case, Shri
Subramanyan. was neither the sole continuing candidate, nor had he secured the
requisite quota of votes. He cannot therefore, be declared elected.
The dictum of this Court in Viswanatha v.
Konappa (supra) does not advance the case of the appellant, Shri Subramanyan.
In that case, the election in question was not held according to the system of
a single transferable vote.
There were only two candidates, in the field
for a single seat, and one of them was under a statutory disqualification, Shah
-J. (as he then was) speaking for the Court, held that the votes cast in favour
of the disqualified candidate may be regarded as thrown away, even if the
voters who had voted for him were unaware of the disqualification, and the
candidate securing the next highest number of votes was declared elected. The
learned Judge was however careful enough to add:
"This is not to say that where there are
more than two candidates in the field for a single seat, and one alone is
disqualified, on proof of disqualification all the votes cast in his favour
will be discarded and the candidate securing the next highest number of votes
will be declared elected. In such a case, question of notice to the voters may
assume, significance, for the voters may not, if aware of the disqualification,
have voted for the disqualified candidate" The ratio decidendi of Viswanatha
v. Konappa is applicable only where (a) there are two contesting candidates and
one of them is disqualified,. (b) and the election is on the basis of single
non-transferable vote. Both these conditions do not exist in the present case.
As already discussed, Shri Subramanyan appellant was not the sole surviving
continuing candidate left in the field, after exclusion of the disqualified
candidate, Shri John. The election in question was not held by mode of single
transferable vote according to which a simple majority of votes secured ensures
the success of a candidate, but by proportional representation with single
transferable vote, under which system the success of a candidate normally
depends on his securing the requisite quota.
555 However, the principle underlying the
obiter in Viswanatha v. Konappa, which we have extracted, is. applicable to the
instant case because here, after the exclusion of the disqualified candidate,
two continuing candidates were left in the field.