Singh & ANR Vs. Jivendra Kumar & Ors  INSC 53 (15 February 2000)
Pal, S.P.Bharucha BHARUCHA,
issue in the appeals and in the special leave petition is the correctness of
the result, as declared, of the election to the post of Adhyaksha/ President of
the Zila Parishad, Shahjahanpur. The election was held under the provisions of
the U.P. Zila Parishads (Election of Adhyaksha and Up-Adhyaksha and Settlement
of Election Disputes) Rules, 1963 framed under the provisions of Section 237 of
the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. Rule
26 of the said Rules states that Schedule II thereof sets out the instructions
for determining the result of elections.
candidates at the concerned election, held on 22nd May, 1995, were Jivendra, Manvendra and Smt. Gayatri Verma.
were 31 electors, all of whom voted. Jivendra got 10 first preference votes, Manvendra
got 14 first preference votes and Gayatri got 7 first preference votes. By
reason of the provisions of Schedule II to the said Rules the quota for
securing a result was 16, which none of the three candidates secured. Gayatri,
having secured the lowest number of first preference votes, was eliminated and
the second preference votes on her ballot papers were considered. Jivendra got
5 more votes and Manvendra got 1 more . This meant that the number of votes
secured on the second count by Jivendra and Manvendra was 15 each.
the Returning Officer decided to draw lots, and by reason thereof Jivendra was
filed an election petition challenging Jivendras election. The election
petition succeeded and appeals therefrom were filed before the High Court. The
maintainability of the appeals was challenged in proceedings with which we are
not concerned. Ultimately, the High Court was required to hear and decide the
appeals on their merits.
High Court, on a construction of Schedule II, noted that neither Jivendra nor Manvendra
had, on the second count, secured the quota of 16. It held that no lots could
have been drawn; also that Manvendra could not be declared as elected on the
basis that he had secured a larger number of first preference votes for the
reason that he had been unable to secure the mandatory quota. Accordingly, the
High Court declared that a casual vacancy in the office of the Adhyaksh had
is called for is an analysis of Schedule II. The relevant portion thereof may
be quoted : 2. Ascertain the number of first preference votes secured by each
candidate and credit him with that number.
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 candidates at the election.
If there are only two contesting candidates then:
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.
the candidate on whom the lot falls and declare the other candidates as
If there are more than two candidates, then- (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 secure first
preference votes equal to or more than the quota aforesaid proceed according to
the instruction hereinafter taking into consideration second and subsequent
preferences as may be necessary.
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.
at the end of any count, no candidate can be declared elected :
the candidate who up to that stage has been credited with the lowest number of
examine all the ballot papers in his parcel and sub-parcel, arrange the
unexhausted papers in sub-parcels according to the next available preferences
recorded thereon for the continuing candidates, count the number of votes in
each such sub- parcel and credit it to the candidate for whom such preference
is recorded, transfer the sub-parcel to that candidate and make a separate
sub-parcel of all the exhausted papers; and (c) see whether any of the
continuing candidate has, after such transfer and credit, secured the quota.
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.
the sub-parcels of exhausted paper referred to in clause (b) above shall be set
apart as finally dealt with and the vote recorded thereon shall not thereafter
be taken into account.
II requires that each candidate shall be credited with the number of first
preference votes that are secured by him. The total number of first preference
votes secured by all the candidates shall be added, the aggregate thereof
divided by two and the resultant figure increased by one, disregarding any
fraction. The resultant figure is the quota sufficient to secure the return of
candidates at the election; that is to say that a candidate who secures votes
equal to or larger than the quota shall be declared elected.
if there are only two candidates at the election, the candidate who gets the
larger number of first preference votes is to be declared elected. It is only
if the two candidates get an equal number of first preference votes that the
result is to be determined by drawing of lots.
there are more than two candidates at the election and one of them secures
enough first preference votes to meet the quota, he shall be declared elected.
If none of the candidates secures first preference votes equal to the quota
then the candidate who has secured the lowest number of first preference votes
shall be eliminated. His ballot papers shall then to be examined for second
preference votes and such second preference votes shall be credited to the
concerned candidates. It shall then be seen whether any candidate has secured
the quota and, if so, he shall be declared elected. If not, the process of
exclusion and addition of votes on his ballot papers shall be continued.
candidate has to be excluded and two or more candidates have been credited with
the same number of votes and stand lowest, that candidate shall be eliminated
who has secured the lowest number of first preference votes and should that
number also be the same in the case of the other candidate, a lot shall be
drawn to determine which of them is to be excluded.
is a general provision in paragraph (5) of the Schedule which requires the
Returning Officer to check at the end of the first or any subsequent count the
total number of votes credited to each of the candidates; if any one of them
secures the quota he shall be declared elected.
also provides that if at the end of any subsequent count there is only one
continuing candidate, that candidate shall be declared elected.
first question, therefore, is whether for the purposes of being elected every
candidate must secure the quota. Where there are only two candidates, the quota
plays no part. Paragraph (4) of the Schedule states that the candidate who
secures more first preference votes than the other shall be declared elected,
and where both get an equal number of first preference votes lots shall be
drawn. The quota plays a part when there are more than two candidates.
that event successive counts shall be held until either a candidate secures the
quota or only one candidate remains.
case before us, there were three candidates so that the quota was relevant. The
first preference votes were cast thus : 14 in favour of Manvendra, 10 in favour
of Jivendra and 7 in favour of Gayatri, aggregating to 31. The quota had to arrived
at thus: 31/2 + 1 = 16 (disregarding the fraction). None of the three
candidates secured 16 first preference votes. Gayatri, having secured the least
number of first preference votes, was eliminated and the second preference
votes on her ballot papers were scrutinised. Manvendra secured 1 and Jivendra
secured 5 second preference votes. Their tally on the second count, therefore,
was equal: 15 votes each. Neither of them had secured the quota.
is no provision in the Schedule to meet a situation such as this.
Memorandum of Appeal reference has been made to three judgments of the Allahabad
High Court and it has been submitted that these cases hold, relying upon
paragraph (6) of the Schedule, that where both continuing candidates secure an
equal number of votes on the second count and one of them had secured a lesser
number of first preference votes, he should be eliminated and the candidate who
had secured the higher number of first preference votes should be declared
first of these judgments of the Allahabad High Court, all delivered by learned
Single Judges, is in the case of Nanak Chand vs. Vachaspati and another
[1968(66) Allahabad Law Journal 29]. The judgment refers to Rule 26 of the
Rules, which lays down that 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 the Schedule. The
Schedule, the learned Judge notes, makes no provision as to how the result
should be declared where the last two candidates after exclusion of others are
found to have received an equal number of votes, counting both the first and
the second preference votes together. The Schedule does make provision,
however, for a situation, where it is found that there are two or more
candidates receiving the lowest number of votes; in that event paragraph (6) of
the Schedule provides that that candidate shall be excluded who had secured the
lower number of first preference votes. For this reason the learned Judge finds
that preference is to be given to first preference votes.
only when there is equality of first preference votes that the exclusion of a
candidate is determined by drawing of lot. Rule 26 also refers to first
preference. I am thus of opinion that in the election of the Adhyaksha and Up-Adhyaksha
the drawing of lot shall not ordinarily determine the result of the election in
case two candidates are found to have secured the same number of votes. The
rule adopted shall be that out of the two candidates securing the same number
of votes, the one who secured greater number of first preference votes is to be
declared elected; but if they secured not only the same number of votes but
also the same number of first preference votes, the lot shall determine the
candidate to be excluded, in other words, the candidate not drawing the lot
shall be declared to have been elected.
judgment in Jagat Singh vs. Dharam Pal Singh [1984(82) Allahabad Law Journal
being a variance in the number of first preference votes secured by the
appellant on the one hand and the respondent No.1 on the other, that becomes,
in my view, decisive in the ultimate analysis of the prescribed manner of
counting for the purpose of being declared elected or the result being
judgment holds that paragraph (6) of the Schedule clearly envisages the
determination of the result on the basis of the strength of first preference
votes where there is equality of votes in favour of the two continuing
candidates on taking their second preference votes into account. The last
judgment of the Allahabad High Court on the point is in Genda Singh vs. Distt.
Judge, Aligarh and others [1985(83) Allahabad Law
Journal 436] and it follows the judgment in Jagat Singhs case (supra).
find some difficulty in reading paragraph 6 of the Schedule in the manner in
which it has been done by the learned Judges of the Allahabad High Court in the
(6) of the Schedule can, in any event, not apply to facts such as those of the
case in hand for the simple reason that under the provisions of that paragraph
only a candidate who has secured the quota can be declared elected. To use as
illustration the votes secured in this case, even if, on the second count, Jivendra
Kumar was to be excluded by reason of the fact that he had secured 10 first
preference votes as against Manvendras 14 first preference votes, Manvendra
could not be declared elected because he had not secured the quota of 16. In
our view, therefore, the High Court was right in holding that Manvendra could
not be declared elected.
provision in paragraph (4) for the drawing of lots operates only when both
candidates get an equal number of first preference votes. The provision in
paragraph (6) for the drawing of lots is applicable only to determine which out
of two or more candidates who have secured the same number of votes at a count
subsequent to the first count shall be eliminated; if these candidates happen
to have secured the same number of first preference votes it shall be decided
by lots which of them is to be eliminated. The instructions to the Returning
Officer in the Schedule are detailed and he is obliged by Rule 26 to follow
them. They tell him when he may resort to the drawing of lots but the
contingency of the two continuing candidates having the same number of votes,
counting both first and second preference votes, is not covered thereby. No
resort to the drawing of lots could have been made in the absence of an
instruction in that behalf in the Schedule (see University of Poona & Ors.
vs. Shankar Narhar Ageshe & Ors., (1971) Supp.
597). We are of the opinion, in the circumstances, that the Returning Officer
was not entitled to draw lots between Jivendra and Manvendra. The High Court
was, therefore, right in holding that the election of Jivendra by the draw of
lots was invalid.
the declaration of the High Court that there was a vacancy in the office of the
Adhyaksh was justified.
appeals and the special leave petition are dismissed.
order as to costs.